Steps in Execution

Written execution petition will be in the form signed and verified by the applicant or by some other person proved to the satisfaction of the court acquainted with the facts of the case.

1. Short cause title.

2. The number of the suit.

3. The names of the parties (short cause title ,and if c.c. of decree is filed, full description of parties is unnecessary)

4. The date of the decree.

5. Any appeal has been preferred from the decree.

6. Whether any and (if any) part payment or other adjustment of the matter in controversy has been made between the parties subsequent to the decree.

7. Whether any and (if any) what previous applications have been made for the execution of the decree, the dates of such applications and their results.

8. The amount with interest (if any) due upon the decree or other relief granted thereby together with the particulars of any costs, decree whether passed before or after the date of the decree sought to be executed.

9. The amount of the costs (if any) awarded.

10. The name of the person against whom execution of the decree is sought.

11. The mode in which the assistance of the court is required.

Checking of execution petitions: -

1. The execution petition has to be filed under Order 21 Rule 11 C.P.C.

2. The 1^st E.P. should be accompanied by the certified copy of the decree and whereas if the parties preferred 1^st Appeal or 2^nd Appeal, as the case may be, the decrees of both the courts should be enclosed to the E.P.

3. The suit number, description of the parties and date of the decree mentioned in the E.P have to be verified with reference to the c.c, of the decree.

4. Then, check whether the amounts mentioned in respective columns.

5. Finally check the prayer portion and provision of law. The Decree-holder should sign and verify correctness of the E.P and also attested by the advocate concerned who holds vakalat.

Whether the decree date is more than 2 years, execution notice should be issued to the Jdr, Under Order 21 Rule 22 of C.P.C. Similarly, from the date of disposal of the previous E.P., to the date of filing of the subsequent E.P., is more than 2 years, execution notice has to be taken U/O 21 Rule 22 C.P.C. In case both are within two years, the said notice is not necessary.

Execution petition for arrest of Judgment debtor

in this, Rule 37 notice is mandatory. Proof affidavit should be filed along with the Execution petition for arrest of Judgment debtor. (Affidavit showing the means of Judgment debtor).

Under Order 21 Rule 37 and 38 C.P.C.

Decree holder prays for arrest of Judgment debtor.

Within 2 years.

1.1.2000

Issue Rule 37 notice to Judgment debtor by 1.2.2000.

1.2.2000

Rule 37 notices are served against Judgment debtor. The Judgment debtor called absent and set exparte. Issue warrant of arrest against Judgment debtor and call on 1.3.2000.

Note: - If the Judgment debtor appears in person or through an advocate, an opportunity is to be given to the Judgment debtor to file his counter and to contest the matter according to law. In such case follow the process under Order 21 Rules 38 to 40 C.P.C.

1.3.2000

Arrest warrant returned unexecuted as the Judgment debtor refused to come to court. For steps call on 7.3.2000.

7.3.2000

Steps for police aid.

Petition filed for police aid and allowed. Re- arrests the Judgment debtor with police aid by 7.4.2000.

7.4.2000 (Different stages and contingencies).

1. Arrest bata not paid. Execution petition is dismissed.

2. Arrest warrant returned unexecuted, as Judgment debtor is not available for arrest. Hence Execution petition is dismissed.

3. F.S. memo filed. F.S recorded. E.P is terminated.

4. J.D brought under arrest Follow procedure, enquiry with regard to means. J.D. committed to Civil prison for 3 months. Jail batta not paid. J.D. released. E.P. is dismissed.

5. Steps for police aid not taken. E.P. is dismissed.

6. Arrest notice or arrest warrant returned with an end that the J.D. is out of the Jurisdiction of the court. E.P. is dismissed.

Note:- At any stage of the execution proceedings the J.D. can pay the part of the E.P. amount. The Court should record such payment as part Satisfaction after obtaining P.S. Memo from D.Hr.

ORDER 21RULE 22, .37&38 C.P.C.

Petitioner-D.Hr. prays to arrest J.D. after notice of execution and arrest.

More than 2 years.

7.12.2000.

Issue Rule 22 notice to J.D. by 7.1.2001.

7.1.2001

Rule 22 notices served against J.D. on 31.7.1.2000. J.D. called absent issue Rule 37 notice to J.D. by 7.2.2001

Rule 37 notices served against J.D. on 28.1.2001. J.D. Called absent and set exparte. Arrest 7.3.2001

1.3.2001

Advanced to this date J.D. brought under arrest. Amount not paid. Jail Batta paid J.D. committed to Civil prison for a period of 3 months. E.P. closed.

Note:-(a) When the J.D. brought under arrest and produced before the Court he may be detained in the Civil prison after observing the procedure under Sec.55 (Cl. (3) C.P.C

(b) Release on the ground of illness: - Refer Sec.50 Cl.1 to 4 of C.P.C.

(d) Where the decree amount is less than Rs.500/- the E.P. for arrest of J.D. is not maintainable under Sec.58 (1-A) of C.P.C.

Disposed of.

Soon after the disposal of the E.P. in any manner, entry should be made in the Disposal Register to that effect.

The minute has to be entered in the suit register concerned in execution column.

Whereas in the other court decrees the result should be communicated to the concerned court of which the decree passed immediately after the disposal of the E.P. The disposal No. also should be noted in the remarks column of the E.P. Register.

E.P. FOR ATTACHMENT AND SALE OF IMMOVALBLE PROPERTY UNDER OR.21 R.54&66

C.P.C

Petitioner-D.Hr. prays to attach the petition schedule

Mentioned property of J.D. and proclaim the same

for sale after sale notice. The immovable property which

Within 2 years. is going to be attached should be

8.12.2000 in the Jurisdiction of the

Attach by 18.1.2001 concerned court.

18.1.2001

Note: -

Attachment of immovable properties effected on whereas the date of decree or the date

30.12.2000 for sale papers and E.C. by 8.2.2001(20 days of disposal of the previous E.P. is more than

duration). 2 years, execution notice, or.21 rule 22 of

8.2.2001 C.P.C. In case of E.P. is within 2 years

Sale papers and E.C. filled Check and call on 15.2.2001. Execution notice is not necessary (in all

15.2.2001 E.P s).

Sale papers checked and they are in order.

(One-week duration.)

Issue sale notice by 15.3.2001.

Sale notice served on 28.2.2001 against J.D. J.D. called

Absent and set exparte for settlement of terms by

23.3.192001.

Particulars of sale papers and Checking.

1)Encumbrances Certificate for a period of 12 years

Prior to the date of attachment of the immovable

Property.

Examples: -

Date of Attachment =30-12-2000 (30-12-2000)

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E.C has to be filed 30-12-88

From 30.12.88 to 30.12.2000. In case of also mortgages and alienation

of the immovable property found in the E.C. the sale papers have to

be returned for clarification.

The description of the property in the preamble portion of the E.C.

should be checked in accordance with the description of the property

in the E.C.schedule.

(2) Sale affidavit by the D.Hr.

(3) Draft proclamation.

(4) Certified copy of 10(1) Account

(in case of lands)

(5) House tax demand extract

(in case of houses)

If the court found that sale papers are in order.

Note: - Whereas the J.D.appeared in person or

through an Advocate an opportunity should be

given to file his counter and contest the E.P.

according to law.

23.3.2001.

Settlements of terms

Examples: -

Lands situated in Sunkesula village fields, Kamalapuram taluq, Kamalapuram Sub- District and Cuddapah Registration District: -

S.No. Nature of land Sy.No. Extent. D.Hr’s value Amin’s value.

1. Circar Kushki S.No.54/4 Ac.3-25 Rs.7000/- Rs. 10,000/-

2. Circar Tari. S.No.54/3 Ac.2-00 Rs.3000/- Rs.5,000/-

Proclaim and sale on 26.4.2001 (35 days)

Publish in Eenadu (any paper)

Further hearing 3-5-2001 (one week from the date of sale)

Note: -a) D.Hr.value to be mentioned as given in the E.P. Schedule. Amin value to be mentioned as given in the attachment list.

b) Whereas the property is under mortgage, the sale may be ordered subject to mortgage i.e Proclaim and sell on 26.4.2001 subject to mortgage dated…………

26.4.2001.

Proclamation made in the village on 8.4.2001. Publication in”Eenadu” filed. Sale batta paid. Sale warrant amount of Rs. ……….. (as noted in sale warrant) Sale held and knocked down in favour of Sri…………S/O……. for Rs.10,000/- being the Highest bidder for further hearing 3.5.2001

Note: - (a) The duration of period will be 15 days between the date of proclamation in the village and the date of sale.

(b) Sale data be paid before 7 days to date of sale.

In view of any defects (a to c) mentioned above, the E.P may be dismissed or the E.P. may be adjourned to further hearing date of steps.

(d) Whereas the J.D filed petition on the date of sale under Or.21 R.69 C.P.C. praying postponement

the court can adjourned the sale to some other date within 30 days waiting fresh proclamation and publication.

(e) In case there are no sufficient bidders, the sale has to be stopped for want of sufficient bidders and adjourned the E.P. to the date of further hearing or E.P. can be dismissed raising attachment.

(f) If the sale stopped on any of the above grounds, fresh sale is to be ordered by the court on petition filed by the Decree holder.

(g) The Decree holder can also participate in the sale along with other bidders after obtaining permission of the court under Order 21 Rule 72 C.P.C (on separate petition) whereas the Decree holder purchases the property, the decree amount may be set off under Order 21 Rule 72 clause (2) C.P.C (set off means the Execution petition amount has to be adjusted towards the sale amount).

3.5.2001.

1/4^th sale amount deposited on 26.4.2001.poundage also collected. For confirmation of sale by 28.6.2001.(clear 60 days from the date of sale to the date of confirmation of sale).

Note: -3/4^th sale proceeds and sale certificate stamp amount deposited within 14 days from the date of sale.

NOTE TO BE PUT UP FOR CONFIRMATION.

The sale of the immovable property of the E.P. Schedule was held on 26.4.2001 and knocked down for Rs.10, 000 /-in favor of ………… being the highest bidder.

The action purchaser deposited the 1/4^th sale amount of Rs.2, 500/- on the same day i.e. on 26.4.2001. An amount of Rs.345-00 collected towards poundage out of the 1/4^thsale amount of Rs.2, 500/-

3/4^th sale proceeds of Rs.7, 500/- and Rs.500/- towards the sale certificate stamp amount (i.e.Rs. 7,500/- + Rs.500-00 = Total = Rs.8000/-) deposited on 8.5.2001. It is in time.

No petitions to set a side the sale or to stay the confirmation are filed or pending in this court.

As per sale warrant the D.Hr. is entitled for Rs.5, 600/-. Hence, the sale may be confirmed. Full satisfaction may recorded and the E.P. may be terminated.

A charge for Rs.500/- may be ordered to be issued in favour of Sub-Try. Officer, for non-Judicial stamps for issue of sale Certificate.

Sale confirmed. Full satisfaction recorded.E.P. terms noted. Attachment raised. Issue Cheque for Rs.500/- in favour of…………… for non-judicial stamps.

(The disposal of the E.P to be entered in the E.P. Regr. And E.P.disposal Register. Minutes to be entered in the suit Register. Entry to be made in the sale certificate Register. Communicate the result to C.No. Dist. Court to make entry in the attachment Register in Transfer E.s. for. (Cuddapah).

Note: - (1) If the sale warrant amount is less than sale amount full satisfaction has to be recorded in the E.P. and it may be terminated.

Examples: - Sale warrant amount Rs.7000/ - F.S.

Sale amount Rs.9000/ - Recorded.

(2) If the sale warrant amount is more than the sale amount, part satisfaction has to be recorded and the E.P.to be closed.

Examples: - Sale warrant amount Rs.6000/ - P.S. for

Sale amount. Rs.4000/ - Rs.4000/ - is to be recorded.

SALE CERTIFICATE STAMPS

Sale amount N.J.Stamps to be collected

Rs.1000/- Rs.50/- ( 5% )

Above Rs.500/- for every Rs.500/-

Or part thereof Rs.25/-

Example

Sale amount Amount to be collected towardsNJS

For issue of sale certificate.

Rs.300-00 Rs.15-00

Rs.500-00 Rs.25-00

Rs.1000-00 Rs.50-00

Rs.1523-00 Rs.100-00

Rs.3025-00 Rs.175-00

Rs.4801-00 Rs.250-00

Upto Rs.1000-00 @ 5%

The sale certificate should be prepared within 3 days from the date of receipt of N.J.S from the S.T.O. The true copy of the sale certificate has to be sent to the concerned Sub-Registrar with a covering letter for registration. The Dis.No, has to be noted in sale certificate Register in col.no.11.The original sale certificate to be delivered to the parties as early as possible (i.e. within one week), under proper acknowledgment in the sale certificate register.

For attachment and sale of movable property: under Order 21 Rule 43 C.P.C .

The following articles (movable properties) are exempted from attachment under sec.60 C.P.C: -

1) The necessary wearing apparel, cooking vessels, beds and bedding of the Judgment debtor, his wife and children, and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman.

2) Tools of artisans and where the Judgment debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such and such portion of agricultural produce or any class of agricultural produces may have been declared to be free from attachment.

Execution petition under Order 21 Rule 43,

66,and 64 of C.P.C.

Petitioner Decree holder prays to attach

The petition schedule mentioned properties

of Judgment debtor and proclaim the same

for sale after sale notice.

(A) (B)

10. 12.2000 10.1.2001

Attach by 10.1.2001. Attachment warrant of movable properties

10.1.2001 returned unexecuted with an Attachment of movable properties effected endorsement that the door was locked and obstructed

On 26.12.2000.For filing sale papers, call on the Amin with his men.

25.1.2001. For steps call on 15.1.2001.

25.1.2001. 15.1.2001

Sale papers filed. Check and call on 8.2.2001. Steps for police aid and to break open the

Note: - Sale papers means: locks- Time extended till 18.1.2001 1).Draft proclamation papers. at request.

2) Sale affidavit. 18.1.2001.

For Steps.

8.2.2001. Petition filed for police aid and another

Sale papers are checked and they are in petition to break the locks.Both petitions

Order. Issue sale notice to the allowed.

Judgment debtor by 22.3.2001 Reattach with police aid and breaking open

22.3.2001. the locks. Call on 18.2.2001.

Sale notice served. Judgment 18.2.2001

Called absent and set exparte.for settlement Attachment warrant of movable

Of terms call on 29.4.2001. Properties returned unexecuted with an

Note: -Whereas the Judgment debtor appeared endorsement that the policemen are not

In person or through an advocate, an available in the station is not available

Opportunity should be given to the in the station, they are on bound bust

Judgment debtor to file his counter and to duty.

Contest the matter according to law. Reattach by 18.3.2001

29.4.2001.Settelment of terms. 18.3.2001

The movable properties of Judgment debtor a) Attachment batta not paid.

In the house bearing no. …… Situated in E.P. is dismissed.

Vg. …… of mandal. b) Attachment warrant of movable

Sl.No Particulars D.hr value Amins value properties returned unexecuted as the

1. Godrej almirah Rs.300/- Rs.500/- property not available for attachment.

(1) E.p. is dismissed

2. Wooden Chairs. Rs 150/- Rr.400/- c) Sale papers not filed.

(4) E.P. is dismissed.

3. Radio Rs.350/- Rs. 400/- Attachment raised.

Proclaim and sell on 4.6.2001(35 days) d) Sale noticed batta not paid.

publish in “Eenadu”F.Hg. 11.6.2001. E.P is dismissed

Issue notice to surety to produce into court Attachment raised

on 4.6.2001.Call on 4.6.2001. e) Proclamation batta, notice batta to surety

and batta not paid.

4.6.2001 E.P is dismissed

Proclamation made in the village on 15.5.2001. Attachment raised.

Publication in “ Eenadu” filled sale batta paid. Whereas the movable property in not

Sale warrant amount of Rs.1400/-. Notice served produced before the court by the

Against surety on 18.5.2001. Surety called and surety.

appeared in person. Movable property produced.

Sale held and knocked down for Rs.1800/- in

Favour of Sri…… S/o…….. of ……… being

The……. Higest bidder. For hearing 11.6.2001 Proclamation made in the village. Proclamation in “Eenadu” is filed. Sale bata paid. Sale warrant amount of Rs.1400/-. Notice served against surety on18.2.2001. Surety called absent and set exparte. The movable property not paid produced. Proceed against surety. E.P. closed.

Note: -Whereas the auction purchaser deposits the entire

Sale amount on the same day i.e.on the date of sale,

the movable property has to be handed over to him

on the same day after obtaining the proper receipt,

otherwise thereafter the procedure should be foll

Owed till the disposal of the Execution petition

As mentioned in the execution proceedings

Of the immovable property under Order 21 Rule

54,66,64 C.P.C.

(Sale certificate is not necessary)

Note: - The case of the disposed of the E.P mentioned inc,d informed that the attachment of the movable properties which are kept in his custody by Amin on 26.12.2000 is raised.

(By issuing a notice.)

Enforcement of liability of Surety under section 145 C.P.C

Where any person has furnished surety or given a guarantee:-

(1) If the surety has rendered himself personally liable, against him to that extent.

(2) If the surety has furnished any property as surety, by sale of such property to the extent of the security.

(3) If the case fails both under clauses (1) and (2), then to the extent specified in those clauses.

Provided that such notice as the court in each thinks sufficient has been given to the surety.

Section 145 and Order 21 Rules 37 and 38 C.P.C

Petitioner-D.Hr. prays to issue notice the surety under Section 145 C.P.C and arrest J.D-1 (surety) after notice of arrest.

(Within 2 years)

11.12.2000

Issue notice under sec.145 C.P.C to J.D.-1 by 11.1.2001

11.1.2001

Sec.145 C.P.C notice served against J.D(surety). On 30.12.2000 J.D-1 called absent and set exparte.

Issue Rule 37 notice to J.D-1. Call on 11-2-2001.

Note:- Afterwards follow the procedure under rules 21,37 and 38 C.P.C

For sale of Attachment movable properties (Before Judgment)

Decree under order 21 Rule 66 and 64 C.P.C.

The following documents have to be filed along with the E.P: -

1) C.C. of decree.

1) C.C. of attachment warrant with Amin’s return.

2) C.C. attachment list by the Amin.

3) C.C. of surety Bond for the movable properties.

4) C.C. of the attachment petition affidavit and final orders thereon.

5) C.C. of Tom Tom recipt.

(Duly paid Curt fees) Rs.2/- each one copy.

Order 21 Rule 66 and 64 C.P.C

Petitioner-D.Hr. prays to proclaim the petition schedule mentioned attached movable properties of J.D. for sale after sale notice.

(Within 2 years)

11.12.2000

Sale papers by 20-12-2000.

Note: - Thereafter follow the procedure given under Order 21 Rule 43,66 and 64 C.P.C.

For Sale of mortgaged immovable property.

Preliminary decree copy and final decree copy have to be filed along with the E.P.duly stamped. Rs.2/- each one decree copy.

Order 21 Rule 66 and 64 C.P.C

Petitioner D. Hr. prays to proclaim the petition schedule mentioned mortgaged immovable property of J.D. for sale after sale notice.

(Within 2 years)

11.12.2000

Test by 11.1.2001

11.1.2001

Testing warrant not yet returned. A Wait by 20.1.2001

20.1.2001

Properties tested on 13.1.2001. Amin value Rs.7000-00.

For sale papers and E.C. by 5-2-192001.

Note:-(a) There after follow the procedure as under order 21, Rules 54,66 and C.P.C

(b) E.C has to be filed for 12 years prior to the date of mortgage along with sale papers.

Decree of execution of a document or endorsement of negotiable

Instrument.

Execution petition under order 21 Rule 34 Of C.P.C

Petitioner-D.Hr. prays to direct the J.D. to execute the sale deed as per terms of the decree failing which the same may be executed through process of the court.

(Within 2 years)

10.12.2000

Issue notice to J.D. along with a copy of the draft sale deed. Call on 10.1.2001.

10.1.2001

Notice with copy of draft sale deed served against J.D. on 30.12.2000. J.DP. called absent and set exparate for filing draft sale deed and N.J.stamps by 31.1.2001.

Note:- Whereas the J.D. appeared in person or though an advocate an opportunity should be given to J.D. to file his counter and to contest the matter according to law.

31.1.2001

For filing draft sale deed and N.J.Stamps time extended till 15.2.2001 on request.

15.2.2001

Draft sale deed and N.J.Stamps filed check and call 22.2.2001.

22.2.2001

Draft sale deed and N.J.stamps checked and they are in order. Ender Engross the sale deed on N.J. Stamps by 2.3.2001

2.3.2001

Sale deed drafted on N.J. stamps. Send the document to the Sub-Registrar for Registration. Call on 17.3.2001.

17.3.2001

Sale deed registered on 15.3.2001. Registration recorded. E.P. closed

Sale deed (Model)

In the court of the District Munsiff at A..

Execution petition No. /19

Original suit No. /19

Between :-

………………………………… Petitioner (D.Hr.).

Vs.

………………………………… Respondent (J.Dr.).

Sale Deed for Rs. /- (Rupees……………)

Sale deed executed by Sri ………………….Munsiff Magistrate of Court of Munsiff Magistrate, ………………. In favour of Sri….. Son of ………… aged……….. Years, calling,…..Street………

WHEREAS O.S.No. 200 …on the file of …………………..is filed by Plaintiff/ D.Hr namely ______herein (i.e., the Vendeee Herein) against the Defendant/J.Dr namely Sri …………….S/o……………………Door …………..Street,…………………………..

Whereas by the decree dated ………. passed in the above Suit, the defendant……………was directed to execute a regular sale deed in respect of the suit schedule property in favour of the plaintiff………… for Rs. ………. failing which the Plaintiff is entitled to have the sale deed executed through Court on behalf of the defendant.

And where as the defendant …………has failed to execute the sale deed as directed in the Decree. Therefore the D.Hr/Plaintiff/ Vendee herein filed E.P.No. /200 ……….before this Hon’ble court praying to have the sale deed executed by Court on behalf of the defendant as provided under the decree.The said E.P was allowed on --------

In the circumstances, I, Sri ………………Munsiff Magistrate ……………of the Court of Munsiff Magistrate, …………..,on behalf of the defendant namely ……… hereby convey, transfer and assign to the plaintiff ………..

all the property which is fully described in the schedule here under, to have and hold the said property, including his heirs and assignees absolutely .

In witness where of, I Sri………………Munsiff, Magistrate……………on behalf of the Defendant and in pursuance of the decree dt………………passed in O.S.No. of 198 …………on the file of ……………has set hand and seal of the court on the ………day of ……………….198………….. in respect of the schedule of property situated in ………village………taluk. , Sub-District,. ………………Registration District within…………..Area

(Particulars of boundaries, if any)

(Note:- In case of lands the extent should be shown in Hectors, in case of measurements cubit and feet, should be shown in meters) .

Sd/-……………………..

Munsiff Magistrate,

………….Place.

Witnesses.

(Signature. Mention the name and full address)

2.Typed by me…………………………….Signature (Steno) with address)

N.J.STAMPS TO BE COLLECTED FOR DRAFTING SALE DEED AS FOLLOWS:-

Stamp fee on sale deed to be collected as per Stamp act.

Attachmenmt of Salary of Govt. Servant or a Servant of Railway Company or a servant of local authority .

First Rs.400/- ( as per c.p.c amendment Rs.1000/-) and 2/3rds of the remainder of the salary is exempted from attachment. The remaining 1/3^rdsalary is liable for attachment.

In case of maintenance decree 2/3^rd of the salary is liable for attachment.

Exempted from attachment.

Refer Section 60 C.P.C, clause (i) Sub-clauses (g) to (p) of the code of Civil procedure.

Salary: -] Means the total monthly emoluments excluding any allowance declare , excludiung any allowance under the provisions of clauses (j) derived by a person from his employment whether on duty or on leave.

Order 21 Rule 48 C.P.C.

Petitioner –D.Hr prays to attach the salary of the J.Dr………………to an extent of Rs.100/- per month, as his salary is Rs.700/- p.m

(Affidavit should be filed along with the E.P.giving salary particulars of J.Dr. ).

(Within 2 years)

14.12.2000

Attach Rs.100/- p.m. and notice to J.Dr. by 14.1.2001

14.1.2001

Attachment proceedings order served against the Drawing Officer on 30.12.2000. Notice served against the J.Dr. on 30.12.2000. J.Dr. called absent and set exparte . Attachment made absolute. E.P. closed.

Note: - Whereas J.Dr. appeared in person or through an advocate, an opportunity should be given to file his counter and to contest the E.P. according to law.

Attachment of Agricultural produce.

Order 21 Rule 44,66 and 64 C.P.C

Petitioner-D.Hr. prays to attach the standing crop Note: - Affidavit has to be filed along the E.P. (Groundnut crop) or (agricultural produce gathered on the thrashing floor)

Stating that the crop will harvesting

within 10 or 15 days.

of J.Dr. mentioned in the E.P.

schedule and proclaim the same for sale after sale

notice

(Within 2 years)

14.12.2000

Attach on deposit of Rs.60/- being the watching charges and issue notice to J.D. by 14.1.2001.

14.1.2001

Attachment warrant returned unexecuted as the J.D. and his men obstructed the Amin for steps by 28.1.2001

28.1.2001

Petition filed for police aid and allowed. Reattach with police aid by 12.2.2001

12.2.2001

Attachment effected on 7.2.2001. Sale papers by 14.2.2001.

Note: - See the provisions as to agricultural produce under attachment under or. 21 Rule 45 of C.P.C

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ATTACHMENT OF PROPERTY IN CUSTODY OF A COURT OR PUBLIC OFFICE UNDER ORDER

21 Rule 52 of C.P.C.

Petitioner-D.Hr. prays to attach to an extent of E.P. amount from out of Rs.10,0000/- lying to the credit of o.s.15/80 on the file of Sub-Judge , Cuddapah.

(or in the Bank or in the office).

(Within 2 years)

14.12.2000

Attachment & notice by 14.1.2001

14.1.2001

Attachment pro. Order served against Sub-Judge, Cuddpah on 21.12.2000. J.D. called absent and set exparte. Attachment made absolute. E.P. closed.

Note:- After disposal of the E.P. the amount has to be send for under a separate application by the D.Hr.

ATTACHMENT OF A DECREE UNDER ORDER 21 Rule 53 C.P.C.

Where the property to be attached is a decree either for the payment of money or for sale in enforcement of a mortgage or charge, the attachment shall be made.

( See Rule 53 clause ( i ) (a) (b) Sub-Cl .( i ) & (11) and clauses 2 to 6 )

Prayer

Petitioner – D.Hr. prays to attach the decree in o.s.80/2000 on the file of the Munsiff Magistrate…………..

(Within 2 years)

14.12.2000

attach and notice to J.D. by 14.1.2001

14.1.2001

Attachment order served against the Munsiff Magristrate………………… Notice served against J.D. and set exparate. Attachment made absolute E.P. closed

Note:- Whereas J.D. appeared in person or though an Advocate, an opportunity should be given for filing his counter and contest the matter according to law.

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Application for execution by transfer of decree.

If a decree has been passed jointly in the favour of two or more persons, the decree is transferred by assignment in writing or by operation of Law, the transfer may apply for the execution of the decree to the court which passed it. The decree may be executed in the terms as usual. Provided where the decree or such interest as aforesaid, has been transferred by assignment, notice of such application shall be given to the transfer and the J.Dr. and the shall not be executed until the court has heard their objections (if any to its execution)

Under 21 Rule 16,54,66 and 64 C.P.C

Petitioner D.Hr. prays to recognize the petitioner as D.Hr. and then attach the petitioner schedule mentioned immovable property of J.D-2 and proclaim the same for the sale after sale notice.

(Within 2 years)

16.12.2000

Issue notice under or. 21 Rule of C.P.C to J.D.1 (transferor) and 2 by 16.1.2001

16.1.2001

Rule 16 served against J.D-1 (transferor) and J.D-2 on 10.1.2001 -J.Ds.1 and 2 called absent and set exparte. Petitioner examined as P.W. 1-petitioner recognized as D.Hr.

Note: - There after following the procedure mentioned under order 21 Rule 54,66 and 64 C.P.C

Delivery of possession of any immovable property .U.O.21 Rule 35 C.P.C.

Petitioner –D.Hr. prays to deliver the petition schedule mentioned immovable property to the petitioner from possession of J.D.

(Within 2 years)

14.12.2000

Deliver by 14.1.2001

14.1.2001

Delivery warrant not returned. A wait by 20.1.2001

20.1.2001

Delivery warrant returned unexecuted as the J.D. and his men obstructed Amin for steps by 25.1.2001

25.1.2001 For steps

Petition filed for police aid allowed. Re deliver with police aid by 19.2.2001.

19.2.2001

Delivery warrant returned as the door was locked. For steps by 24.1.2001

24.1.2001

For steps petition to break open the locks filed and allowed. Re-delivery with police aid and by breaking open the locks by 24.2.2001

24.2.2001

Delivery effected on 20.3.2001. Delivery recorded

E.P closed

In case of 3^rd party Standing crop in the Superstructures in objection property the property

9.12.2000 9.12.2000

Delivery warrant returned unexecuted, 9.12.2000 Delivery warrant returned

With an endorsement that the 3^rd party Delivery warrant returned un-executed with an endo- -rsement

Objected (with documents). For steps unexecuted with an endo- that there are superstructures

By 16.12.2000. rsement that there is in the petition schedule land.

Standing crop in the For steps by16.12.2000.

16.12.2000 petition schedule land. for

For steps; petition filed u/o 21 R.97 c.p.c steps by 16.12.2000. 16.12.2000.

call with EA /2000 by 16.12.2000. For steps. Petition filed to remove

For steps. Petition filed to the superstructures. call with

23.12.2000 deliver the property with EA /2000 by 23.12.2000.

Note: - notice should be given to the 3^rd standing crop. Petition is Note:- An opportunity should be

Party in the above petition and after allowed. Deliver with standing given to the J.D in the said

Giving opportunity to file his counter crop by 16.1.2001. petition to file his counter and

And after enquiry the petition may be Note: -It is the discretion of after enquiry the petition may

Allowed or dismissed. The court to give opportunity be allowed or dismissed.

23.12.2000 to the respondent in the petition

EA /2000 (u/o21R.97) allowed deliver to deliver with standing crop. 23.12.2000

The property after removing the 3^rd 16.1.2001 EA allowed. Deliver after

Party. Call on 23.1.2001. Delivery effected on 10.1.2001. removing the superstructures

23.1.2001. Delivery recoded. E.P is by 23.1.2001.

Delivery effected on 13.1.2001.Delivery Closed. 23.1.2001.

Recorded. Execution petition is closed. Delivery effected on 18.1.2001

Delivery recorded. E.P is closed.

Delivery proceedings under a sale certificate.

Delivery of property in occupancy of J.Dr

Under Order 21 Rule 95 C.P.C

Petitioner- Auction purchaser prays to deliver the petition schedule Note: -Delivery proceeding has to be

Mentioned property from the possession of xyz. taken within one year from the

Date of sale certificate. After

The petition schedule mentioned immovable property One-year petition is not

Was purchased by the auction purchaser in a court Maintainable.( EA is to be filed)

Sale on .. .. and the said sale was confirmed on .. ..

14.12.2000

Deliver by 14.1.2001

*Afterwards follow the proceedings as under or.21 rule 35 C.P.C. …………………..

Whereas any third party or others objected from executing the delivery warrant, he should make an application to the court complaining of such resistance or obstruction.

Order 21Rule 97 C.P.C: - Where any application is made under Sub-Rule (1) the court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.

Order 21 Rule 98 C.P.C. : - Upon the determination of the questions reffered to the Rule 101, the court shall, in accordance with such determination and subjects to the provinces of the Sub-Rule (2)---------

(1) Make an order allowing the application and directing that the applicant be put into the possession of the property in dismissing the application.

(2) Pass such other order as in the circumstances of the case, if any may deem fit.

Order 21 Rule 98 ( 2 ) : - Where upon such determination, the court is satisfied that the resistance or obstruction was occasioned without any just cause by any J.Dr. or by some other person at his instigation or on his behalf or by any transfer where such transfer was made during the pendency of the suit on execution proceedings. It shall direct that the applicant be put into the possession of the property, and where the applicant is still resisted or obstructed in obtaining possession, the court may also, at the instance of the applicant, order the J.Drs. or any person acting at his instigation or his behalf, to be detained in the civil prison for a term which may extend to thirty days.

Execution Application Application to set a side the sale under or.21 rule 80 C.P.C

Every petition should be accompanied by an affidavit. Petitioner J.Dr. prays to set a side the sale held on ……

The petition should be filed into the court after giving where in movable property has been sold in execution of a

Notice to the other side. decree, sold in execution of a decree any C.F of Rs.1/- should be paid on petition.

person claiming an property sold may apply to have the sale set

------------- aside on his dispositing into the court.

Petition Under 0.21 Rule 106 C.P.C ( a) Entire sale warrant amount for payment to the D.Hr.

Petitioner-J.Dr. prays to set aside exparte (b) Poundage to the court.

order dated ……….. passed against the (c) Solicium at 5% of the purchase money for payment to

petitioner. the purchaser.

The petition should be accompanied by (The application shall be made within 30 days from the

an affidavit. date of sale )……..

The application shall be made within 30 Petition to set a side sale on ground of irregularity or fraud:

days from the date of order or from the date under Order 21 Rule 90 C.P.C

of knowledge. In this case deposit an amount does not arise.

-----------------

Stay of execution petition Under Or.21 Rule Cheque petition Rule 231 C.R.P.

26 of C.P.C Particulars of cheque petition:-

Petition and affidavit. (1) Petition duly stamped

Claim petition under Order 21 Rule 58 of C.P.C (2) Affidavit of the petitioner

Petitioner-claimant prays to raise the attachment of (3) Payment schedule.

the immovable property dated……….. and allow (4) Stamped receipt.

the petition with costs. (5) P.S. Memo in case of withdrawal of part of decree amount.

The D.Hr. and J.Dr. have to be added as.

respondents in the petition. (Or F.S. Memo in case of full settlement.)

Verified petition has to be filed. (6) In case of LAOPs or MVOPs an attested Photo is to be affixed.

Documents have to be filed along with the petition to

prove their claim.

PAYMENT OUT OF COURT TO THE Decree holder

Under Order 21 Rule 2 C.P.C

Receipt issued by the Decree holder should be filed along with petition.

The receipt should be filed into Court within 30 days from the date of receipt.

------------------------

Bringing of L.Rs. of the Decree holder in Execution Proceedings u/s 146 C.P.C

Whereas the Decree holder died after the decree, Succession certificate should be filed to execute the Decree by his L.Rs.

Whereas the D.Hr. died during the pendency of the execution proceedings, the L.Rs. to be added on separate application. At this stage, succession Certificate not necessary.

After service of L.R. notice on the respondent, the L.Rs of D.Hr. have to be added. (The amendment has to be carried out in the suit register and in E.P. Register).

Whereas minor L.Rs guardian appointment petition also to be filed along with the L.R. petition

(In case guardian appointed, the said entry to be carried out in suit register and in E.P. Register).

-----------------

Bringing of L.Rs of the deceased Judgment debtor in Execution proceedings. U/s 50 C.P.C

The L.Rs of J.D. have to be brought on record on a separate application.

In case of minor’s guardian appointment petition also should be filed along with L.R. Petition.

The decree should be executed against the estate of late J.D. in the hands of the L.Rs. L.R notice has to be served against the proposed L.Rs whereas the petition allowed, the parties to be added in the suit register and in the E.P. Register.

-------------------

TRANSFER OF DECREE FROM ONE COURT TO THE OTHER COURT UNDER SEC.39 C.P.C

The court which passed a decree may, on the application of the D.Hr. send it for execution to another court (of comp tenant jurisdiction)

(Affidavit of D.Hr. should be filed giving reasons for transfer)

Please see Sec.39 clause (1) Sub-Cl. (a) to (d) and clauses (2) and (3) C.P.C

Verified petition (in E.P form) should be filed under Section 39 of C.P.C

Note: -When the decree is more than 2 years as D.H r’s advocate endorsed in E .A., that the Execution Notice (Order 21 Rule 22 C.P.C ) will be taken in execution Court, the decree can be transferred subject to Rule 22 notice). The C.C of decree,and forms 3,4, and 5 of appendix E shall be transmitted to the transferee court on payment of process.

---------------

Transfer of decree from small cause side to original side Under Section 34 Small Cause Courts Act.

When the D.Hr. in small cause suit desires to proceed against the immovable property of J.D. the decree has to be got Transferred to original side, the decree can be executed against the immovable property of J.D.

-------------------------

SECTION 73 C.P.C

Rateable distribution among Decree holders under section 73 C.P.C

Whereas the assets are held by a court and more persons than one have, before the receipt of such assert, made application to the court for the execution of decrees for the payment of money passed against the same judgment debtor and have not obtained satisfaction there of, the asserts after deducting the costs of realization shall be rate ably distributed among all such persons: -

The mortgages or the encumbrances are not entitled for retable distribution in the sale amount.

The other Decree holders who are asking for rate able distribution from the sale amount realized ferom one E.P. should file their E.Ps. into Court prior to the asserts realized (i.e date of sale ) or on the date itself, otherwise the petition under section 73 (For rate able distribution is not maintainable)

Distribution of reatable: -

Asserts (sale proceeds) realized inE.P.1/2000 O.S.2/80:-12.200-00

The amounts due under all E.Ps should be calculated.

a) E.P.1/2000 in O.S.2/80: - E.P. Costs: -

E.P. amount: - Rs.4000-00 Costs upto the filing: -

E.P. costs : - Rs. 100-00 of the E.P: - Rs. 50-00

Interest from the Bata Rs. 10-00

date of E.P. till B.Memo Rs. 10-00

dates of disposal B.Memo Rs. 30-00

of the E.P. 100-00 ----------------

------------ Rs. 100-00

Total:- 4200-00 ----------------

------------

b) E.P.2/2000 in O.S.3/80:- E.P. Costs: -

E.P. amount Rs. 5000-00

E.P. costs Rs. 50-00

Interest from

The date of ---------As above---------

E.P. to the date

Of disposal of

E.P. 50-00

-------------------

5100-00

-------------------

c) E.P.3/2000 in O.S.4/80: - E.P. costs: -

E.P. amount. Rs. 6000-00

E.P. costs. Rs. 300-00

Interest from the

date of E.P. till -----------As above-----------

the date of disposal

of E.P: - 50-00

-----------------

Total: - 5450-00

-----------------

d)E.P. No.4/2000 in O.S.5/80: - E.P. costs: -

E.P amount: - Rs. 5000-00 Costs upto filing of the E.P: - Rs. 350/-

E.P costs: - Rs. 400-00 Batta memo 50/-

Interest from the ---------------

date of filing of E.P. 400/-

till the date of disposal ---------------

of E.P. Rs. 50-00

--------------

Total: - Rs.5450-00

---------------

Total sale proceeds realized inE.P.1/2000 in

O.S. 2/80: - Rs. 12,400-00

E.P. costs should be

Deduced from the sale

Proceeds and poundage

(E.P. costs Rs.100/-

and poundage Rs.200/-) 300-00

---------------------

Balance sale proceeds Rs.12, 100-00

-------------------

The balance amount of Rs.12, 100/- has to be distributed among the debtors as per ratio.

No. of the proceedings. E.P.Amount. Amount distributed rateable

1. 2. 3.

1) E.P. 1/2000 in O.S. 2/80 Rs.4200-00 Rs .2336-70

2) E.P. 2/2000 in O.S. 3/80 Rs.5100-00 Rs. 2837-30

3) E.P. 3/2000 in O.S. 4/80 Rs.7000-00 Rs. 3894-60

4) E.P. 4/2000 in O.S. 5/80 Rs.5450-00 Rs. 3031-40

--------------- ------------------

Total: - Rs.21750-00 Rs.12100-00

---------------- ------------------

As the rate of 564.Or 57 paise per Rupee.

Realisable distribution memo in E.P. 1/2000 in O.S. 2/80

Sale amount Rs.12400/- less poundage = 12,200/- the cost of E.P. is Rs.100-00

Balance: Rs12, 200/- (-) Rs.100/- = Rs.12,100-00

Sl. No. E.P. No Connected Suit No Name of the E.P.amount Rate of Amount Signature of amount actually advocate for rateably dhr.

Distribu- Distributed

Decree holder ted.

By his Advocate.

1. E.P. 1/2000 O.S.2/80 (Name) 4200-00 .564 or Rs. 2336-70 sd/-

0-57ps. E.P

Costs: - 100-00

---------------

2436-70

---------------

2. E.P. 2/2000 O.S. 3/80 “ 5100-00 “ Rs.2857-30 sd/-

3. E.P. 3/2000 O.S. 4/80 “ 7000-00 “ 3894-60 sd/-

4. E.P. 4/2000 O.S. 5/80 “ 3450-00 “ 3031-40 sd/-

In rateable distribution:- Sd/- xx xx xx

1. The D.Hr. in E.P. 1/2000 is entitled for Rs.2436-70 ps. For Rs.2436-70 recorded.

E.P.closed

2. The D.Hr. in E.P. 2/2000 is entitled for Rs.2837-30 ps. For Rs.2837-30 recorded

3. The D.Hr. in E.P. 3/2000 is entitled for Rs.3894-60 ps. For Rs.3894-60 recorded

4. The D.Hr. in E.P. 4/2000 is entitled for Rs.3031-40 ps. For Rs.3031-40 recorded

Note:- The D.Hr. in E.Ps 2 to 4 have to file and for petition from O.S.2/80 to the credit of this suit after distribution of rate able to their respective amount and then they have to file cheque petition to withdraw the amount from the Court.

Precept u/sec.46 c.p.c.

A precept is not an Execution petition. It is only intended to enable the Decree holder to obtain an interim attachment when it is apprehended that he would be deprived of the fruits of the decree. It is a request, by the court, which passed the decree to another court by which attachment has been made. The attachment in pursuance of a precept is limited to two months unless it is extended further. The Decree holder necessarily files an execution petition in the court, which has attached the property for sale of the property. Every application for issue of a precept shall be in the form of an interlocutory application by assigning proper reasons.

Act 7 / 1977.

The act is here by first published on the 30^th day of April 1977 in the Andhra Pradesh Gazette for the general information.

The said Act shall not be deemed to have come into force on the 29^th December 1976.

Section 4 of A.P. Indebtedness (Relief) Act, 1977

From the commencement of this Act every dept including interest if any owing to any creditor by any agricultural laborer or rural artisan or a small farmer shall be deemed to be wholly discharged.

(1) Agricultural labourer: - Means a person who does not hold any agricultural lands and whose principal means of livelihood is by manual labour on Agricultural land in the capacity of laborer on hire of on exchange whether paid in cash or in kind or partly in cash and partly in kind.

(2) Rural Artisan: -Means a person who does not hold any agricultural land and whose principal means of livelihood is production or repair of traditional tools, implements and other articles or things used for agricultural or purposes ancillary their to and includes or person who normally earns his livelihood by practicing a craft either by his own labour or by the labour of all or any of the members of his family in rural areas.

(3) Small farmer: - Means a person who does not hold any agricultural land and whose principal means of livelihood, is income derived from agricultural land and who holds and personally cultivates, or who cultivates as a tenant or share cropper or mortgage who posses, agricultural land which does not exceed in extent.

a) In case of persons other than the members of the scheduled Tribes, one hector, if it is wet, or two Hectors if it is dry.

b) In case of the members of the schedule Tribes Two hectors, if it is wet. or Four hectors, if it is dry, but does not include any person whose annual household income, other than from agricultural exceeds Rs.1000/- and 1200/- in any two years within three years immediately proceeding the commencement of this Act.

Wetland: - means land registered as Wet, single crop wet, Double crop Wet, compounded Double crop wet or special rate Wet land, in the land revenue accounts of the government or Assessed as such.

Dry land: - means land registered as dry manabory as monetary bhagat or garden land, or special rate dry land in the revenue accounts of the Government or assessed as such and includes any other agricultural land excluding wet land

This Act shall not apply to the Nationalized Banks. The petition under section 4 of the Act 7/77of A.P. Agricultural Indebtedness (Relief) Act shall file any stage when the proceedings are pending in the court. The petition should be accompanied by an Affidavit.

No civil court shall entertain any suit or other proceedings against the debtor for the recovery of any amount of the debt, including interest, if any, which is deemed to be discharged under the Andhra Pradesh Agricultural Debt (Relief) Act.

Order 21, Rule 57. —Attachment of property. —Dismissal of execution in default. —Restoration of execution. — The attachment order does not come to an end. Even if a doubt were to be entertained as to whether an order for restoration of the suit or execution application would have the effect of restoring the attachment retrospectively so as to affect alienations made during the period between dismissal of the suit or execution application and the order directing restoration it is clear that an order directing restoration would certainly restore or revive the attachment for the period during which it was in subsistence, namely, prior to the dismissal of the suit or execution application. In our view, the Division Bench of the Calcutta High Court was in error in taking the view, in the judgment appealed against, that by reason of the dismissal of the said Title Execution Case, the attachment came to an end and the order of restoration of the said case would not affect any alienation made before the restoration although such alienations might have been during the subsistence of the attachment. Nancy John Lyndon v. Prabhati Lal Chowdhry and others, AIR 1987 SC 2061: 1987(4) SCC 78: 1987(3) SCR 1038: 1987(2) Scale 413: 1987(3) J.T. 366: 1987(2) Land LR 548

Order 21, Rule 57.—Difficulty in execution.—Options available to the executing Court.—The Court may either adjourn the execution proceedings or may dismiss the application in case of difficulty in execution. The rule leaves three courses open to the executing Court in case it finds it difficult to proceed with the execution case by reason of the default of the decree-holder. It may (1) adjourn the proceedings for good reason which will automatically keep the attachment alive or (2) simply dismiss the application which will automatically destroy the attachment or (3) dismiss the application but specifically keep alive the attachment by an express order. The rule, as amended, therefore, contemplates three distinct forms of order, any one of which may be made by the Court in the circumstances mentioned in the rule. The amendment which added the words unless the Court shall make an order to the contrary at the end of the Rule envisages a dismissal of an application for execution while at the same time continuing a subsisting attachment. The dismissal of 30-1-1937 must, therefore, be taken to be a dismissal of the execution application then before the Court and cannot be taken, to have any wider operation. On the other hand the continuance, in express terms, of the attachment notwithstanding the dismissal, indicates that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. Attachment itself is a proceeding in execution and, so long as it subsists, the proceeding in execution can well be regarded as pending. Pashupatinath Malia and another v. Deba Prosanna Mukherjee, AIR 1951 SC 447: 1951 SCJ 506: 1951 SCR 572

Order 21, Rules 58 and 63.—Res judicata.—Application of.—The order passed in claim proceedings operate as bar to the suit for the limited purpose of Rule 63.—The principle of res judicata has no application. A claim proceeding under Rule 58 is not a suit or a proceeding analogous to a suit. An order in the claim proceeding does not operate as res judicata. it is because of Rule 63 that the order becomes conclusive. The effect of Rule 63 is that unless a suit is brought as provided by the rule the party against whom the order in the claim proceeding is made or any person claiming through him cannot re-agitate in any other suit or proceeding against the other party or any person claiming through him the question whether the property was or was not liable to attachment and sale in execution of the decree out of which the claim proceeding arose, but the bar of Rule 63 extends no further. Mangru Mahto and others v. Thakur Taraknathji Tarkeshwar Math and others, AIR 1967 SC 1390: 1968 All LJ 417: 1968 BLJR 322: 1968 MPWR 326: 1967(3) SCR_125

Order 21, Rule 63.—Auction sale in execution of decree.—Suit seeking to set aside sale.—Execution against joint family property in execution of decree against a member of family.—Decree not binding on other members.—Suit for restitution of property is maintainable. Once the decree, which was the subject matter of execution,as declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai, the execution sale would not bind them and as a result they become entitled to restitution. The decree does admittedly contain a direction for restitution. Therefore, it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house. Accordingly, the decree is executable. Bhanwar Lal v. Smt. Prem Lata and others, AIR 1990 SC 623: 1990(1) SCC 353: 1990(1) SCR 25: 1990 (1) J.T. 26

Order 21, Rule 63.—Fictitious documents.—Pleading of.—The burden of proving such document is heavy on the plaintiff seeking to set aside an order passed on the basis of such documents.—The burden is doubly heavier on the plaintiff seeking to set aside order passed in execution proceedings. The burden of proof is heavy on a plaintiff who sues for a declaration of a document solemnly executed and registered, as a fictitious transaction. The burden becomes doubly heavy when the plaintiff seeks to set aside the order of the civil court, passed in execution proceedings, upholding the claim of a third party to a property sought to be proceeded against in execution. The plaintiff, who seeks to get rid of the effect of the adverse order against him, has to show affirmatively that the order passed on due inquiry by the executing court, was erroneous. Paras Nath Thakur v. Smt. Mohani Dasi (deceased) and others, AIR 1959 SC 1204: 26 Cut LT 1: 1959 Supp (2) SCR_271

Order 21, Rule 63.—Fraud and coercion.—Effect of.—Circumstances indicating collusion with creditor forming the basis of fictitious award.—Suit challenging the sale of property on the basis of award, rightly disallowed. Thakur Dongar Singh v. Dr. Ladli Prasad Bhargava, AIR 1974 SC 598: 1973(2) SCC 263

Order 21, Rule 64.—Auction sale .—Sufficient portion of property required for satisfaction of decree, not determined.—All property included in sale.—Auction sale is illegal. Lal Chand v. VIII Addl. District Judge and others, AIR 1997 SC 2106: 1997(4) SCC 356: 1997(2) Scale 475: 1997(3) JT 767: 1997 All LJ 1170: 1997(2) Land LR 177

Order 21, Rule 64.—Execution of decree.—Inseparable decree in favour of joint decree-holders.— Order for delivery of possession and possession taken by decree-holders.— Challenge to the order of delivery of possession without impleading one decree-holder.—The order attained finality against one of the decree- holders.—The decree being inseparable the order cannot be reversed against the remaining decree holders. Rajeshwari Amma and another v. Joseph and another, AIR 1995 SC 719: 1995(2) SCC 159: 1995(1) Scale 149

Order 21, Rule 64.—Sale for satisfaction of decree.—Duty to determine necessity of sale.—When the decree stand satisfied by sale of a part of property, sale beyond the necessary amount is not permissible.—Acquiescence of Judgment Debtor is of no consequence. When the amount as specified in the sale proclamation was fully satisfied by the sale of the properties in village Devanoor, the Court should have stopped the sale of further items of the properties. It is manifest that where the amount specified in the proclamation of sale for the recovery of which the sale was ordered is realised by sale of certain items, the sale of further items should be stopped. This, in our opinion, is the logical corollary which flows from Order 21, Rule 64 of the Code. Executing Court derives jurisdiction to sell properties attached only to the point at which the decree is fully satisfied. The words necessary to satisfy the decree clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. In other words where Order 21, Rule 66.—Auction sale.— Procedure.—Adjournment of bidding.—Objections to sale on the ground that no adjournment was made.—Non of the bidders who appeared at earlier auction, participating in second auction.—The adjournment of bidding cannot be believed.—The requirement of rule not met.—Sale set-aside. The court has a duty to see that the requirements of Order XXI, Rule 66 are properly complied with. In the words of the Judicial Committee, In sales under the direction of the court, it is incumbent on the court to be scrupulous in the extreme. Though it may not be necessary for the court to make a valuation and enter it in the sales proclamation in every case, it is desirable at least in cases of sale of valuable property that the court make its valuation and enter it in the sale proclamation. The judgment-debtors put the action purchaser on notice of their case in their objections to the sale. They adduced evidence in support of their case. It was the duty of the auction purchaser to adduce the best evidence in support of his case by examining the auctioneer. He refrained from doing so. In those circumstances it was not open to the courts below to rely upon the note made by the auctioneer in the bid list when the substance of the note was itself under challenge. In addition, we have already mentioned the other outstanding circumstance of the case that not one of the eight bidders who participated in the auction on August 29, 1977 was present at the auction on September 1, 1977. We are led to irresistitible conclusion that no announcement was made on August 29, 1977 that the auction would be continued on September 1, 1977. We are also satisfied that the price of Rs. 4,37,000/- for a 28/48 share of a cinema in New Delhi standing on land of the extent of 500 sq. yard can hardly be considered an adequate price. M/s. Shalimar Cinema v. Bhasin Film Corporation and another, AIR 1987 SC 2081: 1987(4) SCC 717: 1987(2) Scale 356: 1987(3) J.T. 362: 1987(2) Land LR 565

Order 21, Rule 66.—Auction sale.— Upset price.—Necessity to fix.—It is the duty of executing court to fix the upset price itself.—Delegation of power to Commissioner, not proper. It is the function of the Court, while proclamation is drawn up to fix the amount of the recovery for which the sale is ordered and also to specify such other particulars as are necessary in that behalf to be material for the purpose of conducting the sale. It is seen that the executing Court appears to have given direction to the Commissioner not only to conduct the sale but also to fix the upset price at Rs. 70,000/-. In that view, there is no infraction of the mandatory language contained in Order XXI, Rule 66 CPC as the Commissioner had fixed the upset price not on his own but on the direction of the Court itself. M.L. Mubarak Basha and others v. Muni Naidu, AIR 1997 SC 938: 1997(4) SCC 153: 1997(1) Scale 307: 1997(1) JT 468: 1997(2) APLJ 5: 1997(2) Mad.LJ 44

Order 21, Rule 66.—Proclamation of sale.—Valuation of property.— Failure to make independent estimate of sale price.—It constitutes material irregularity. The Court, when stating the estimated value of the property to be sold, must not accept merely the ipse dixit of one side. It is certainly not necessary for it to state its own estimate. If this were required, it may, to be fair, necessitate insertion of something like a summary of a judicially considered order, giving its grounds, in the sale proclamation, which may confuse bidders. It may also be quite misleading if the Court's estimate is erroneous. Moreover, Rule 66(2) (e) requires the Court to state only the facts it considers material for a purchaser to judge the value and nature of the property himself. Hence, the purchaser should be left to judge the value for himself. But essential facts which have a bearing on the very material question of value of the property and which would assist the purchaser in forming his own opinion must be stated. That is, after all, the whole object of Order 21, Rule 66(2) (e), and Civil Procedure Code. The Court has only to decide what all these material particulars are in each case. In the case before us, the execution Court had practically accepted, as its own valuation, without indicating reasonable grounds for this preference, whatever the decree holders had asserted about the value of the property. It did not bother to seriously even consider the objections of the judgment-debtors. We think that the duty to consider what particulars should be inserted in the sale proclamation and how the sale ought to be conducted should be performed judicially and reasonably. If the execution Court does not, as it did not in the case before us, apply its mind or give any consideration whatsoever to the objections of the judgment- debtor, we think a material irregularity would be committed by the execution Court. Gajadhar Prasad v. Babu Bhakta Ratan, AIR 1973 SC 2593: 1973(2) SCWR 289: 1974(1) SCR 372: 1973(2) SCC 629

the sale fetches a price equal to or higher than the amount mentioned in the sale proclamation and is sufficient to satisfy the decree, no further sale should be held and the Court should stop at that stage. The fact that the judgment-debtor did not raise an objection on this ground before the Executing Court is not sufficient to put him out of Court because this was a matter which went to the very root of the jurisdiction of the Executing Court to sell the properties and the non-compliance with the provisions of Order 21, Rule 64 of the Code was sufficient to vitiate the same so far as the properties situated in village Gudipadu were concerned. Takkaseela Pedda Subba Reddi v. Pujari Padmavathamma and others, AIR 1977 SC 1789: 1977(3) SCC 337: 1977(3) SCR 692

Order 21, Rule 67.—Auction sale.— Publication of.—Sale conducted without proper notice is illegal. Lal Chand v. VIII Addl. District Judge and others, AIR 1997 SC 2106: 1997(4) SCC 356: 1997(2) Scale 475: 1997(3) JT 767: 1997 All LJ 1170: 1997(2) Land LR 177

Order 21, Rule 72.—Auction sale.— Bidding by decree holder.—Leave of court.—Necessity of.—Bidding by decree holder without obtaining prior permission of the court is violative of provision. Lal Chand v. VIII Addl. District Judge and others, AIR 1997 SC 2106: 1997(4) SCC 356: 1997(2) Scale 475: 1997(3) JT 367: 1997 All LJ 1170: 1997(2) Land LR 177

Order 21, Rules 72, 92 and 94.—Set aside of sale.—Affect on auction purchaser.—Where the auction pur- chaser is the decree holder himself he is not entitled to any protection. Ordinarily, if the auction purchaser is an outsider or a stranger and if the execution of the decree was not stayed of which he may have assured himself by appropriate enquiry, the court auction held and sale confirmed and resultant sale certificate having been issued would protect him even if the decree in execution of which the auction sale has been held is set aside. This proceeds, on the footing that the equity in favour of the stranger should be protected and the situation is occasionally reached on account of default on the part of the judgment debtor not obtaining stay of the execution of the decree during the pendency of the appeal. But what happens if the auction- purchaser is the decree holder himself? In our opinion, the situation would materially alter and this decree holder.—auction purchaser should not be entitled to any protection. Sardar Govindrao Mahadik and another v. Devi Sahai and others, AIR 1982 SC 989: 1982(1) SCC 237: 1982(2) SCR 186: 1982(1) Scale 191

Order 21, Rules 84 and 85.—Compliance of.—Necessity of.—Deposit not made in accordance with the provision of rules.—Sale is rendered void and not merely irregular. Gangabai Gopaldas Mohata v. Fulchand and others, AIR 1997 SC 1812: 1997(1) Scale 1: 1997(1) JT 343: 1997(10) SCC 387: 1997(2) All. WC 930: 1997(2) Mah. LJ 561

Order 21, Rules 84, 85 and 86.—Auction purchase.—Non- deposit.—Effect of.—Failure to make deposit of 25% of purchase money by the stranger purchaser.—No sale comes into existence. The provisions of the rules requiring the deposit of 25 per cent of the purchase money immediately, on the person being declared as a purchaser and the payment of the balance within 15 days of the sale are mandatory and upon non- compliance with these provisions there is no sale at all. The rules do not contemplate that there can be any sale in favour of a purchaser without depositing 25 per cent of the purchase money in the first instance and the balance within 15 days. When there is no sale within the contemplation of these rules, there can be no question of material irregularity in the conduct of the sale. Non-payment of the price on the part of the defaulting purchaser renders the sale proceedings as a complete nullity. The very fact that the court is bound to re-sell the property in the event of a default shows that the previous proceedings for sale are completely wiped out as if they do not exist in the eye of law. We hold, therefore, that in the circumstances of the present case there was no sale and the purchasers acquired no rights at all. Manilal Mohanlal Shah and others v. Sardar Ahmed Sayed Mahmad and another, AIR 1954 SC 349: 1954 SCJ 509: 1955(1) SCR 108

Order 21, Rules 84, 85 and 86.— Auction sale.—Deposit of consi- deration.—Necessity in case of purchase by the decree-holder.— Though the decree-holder entitled to advantage of set off, the compliance of Rule 85 to deposit full consideration is mandatory.—The executing Court has no inherent power to extend the time to make deposit.—Auction sale held to be void due to non-compliance of provision. Balram son of Bhasa Ram v. Ilam Singh and others, AIR 1996 SC 2781: 1996(5) SCC 705: 1996(6) Scale 133: 1996(7) JT 423: 1996 All LJ 1811

Order 21, Rules 84, 85 and 86.— Compliance of.—Necessity of.—The provision is mandatory and non- compliance renders the sale invalid. Manilal Mohanlal Shah and others v. Sardar Ahmed Sayed Mahmad and another, AIR 1954 SC 349

Order 21, Rules 89 and 92(2).— Auction Sale.—Deposit to set aside sale.—The Article 127 of Limitation Act, 1963 providing limitation for 60 days has no application.—The limitation as provided under the rule is of 30 days.Rule 89 postulates an application on deposit. It says may apply to have the sale set aside on his depositing in Court. These words show that deposit is a condition precedent to the making of an application to set aside a sale. That condition must be satisfied within the period prescribed by sub-rule (2) of Rule 92, which undoubtedly is 30 days. Parliament refused to alter that provision even when a part of the sub-rule was substituted. There is no inconsistency between the two sets of provisions prescribing different periods of limitation. Such inconsistency can arise only if obedience of one provision will result in disobedience of the other. While Rule 92(2) requires a deposit to be made within 30 days from the date of sale, Article 127 requires an application contemplated under Rule 89 to be made within 60 days from the date of sale. The deposit must necessarily precede the application for no application under Rule 89 can be made except on depositing the amount in Court. We see no inconsistency in these two sets of provisions. P.K. Unni v. Nirmala Industries and others, AIR 1990 SC 933: 1990(2) SCC 378: 1990(1) SCR 483: 1990(1) JT 423

Order 21, Rule 90.—Challenge to auction sale.—Requirement of pre- deposit.—Effect of local amendment conferring discretion on the court to dispense with the requirement of pre- deposit of twelve and half per cent of amount of sale.—Compliance with condition at appellate stage.— Permissibility. Clause (b) of the proviso confers on court considerable discretion. It is left to the court to decide the quantum of deposit to be made subject to the maximum prescribed therein. The court is also conferred with the power to dispense with the requirements of making a deposit, for reasons to be recorded. From the language of the proviso, it is clear that the power conferred on the court is a discretionary power. It is expected that the court would ordinarily give an opportunity to the applicant to comply with Clause (b) of the proviso and could reject the application if the same were still not complied with. That should be particularly so in an application made before Clause (b) was incorporated into the proviso. As seen earlier before the executing court all the parties had proceeded on the basis that the clause in question did not apply to the present proceedings. Under the circumstances, we are of the opinion, that in the interest of justice the High Court should have remanded the case to the executing court leaving it to that court to exercise its discretion under Cl. (b). Hindustan Commercial Bank Ltd. v. Punnu Shau (dead) through legal representatives, AIR 1970 SC 1384: 1971(3) SCC 124

Order 21, Rule 90.—Material irregularities.—Lack of jurisdiction .—Acquiescence.—Failure to challenge the jurisdiction of the court executing the decree.—The judgment debtor cannot raise the plea of lack of jurisdiction after the sale of property in execution. Error! Bookmark not defined. Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65: 1953 SCJ 130: 1953 SCR 377

Order 21, Rule 90.—Material irregularities.—Scope of.—Failure to send a copy of the decree or the certificate referred under Rule 6(2)(b) does not amount to material irregularity so as to entitle setting aside of sale in execution of decree. Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65: 1953 SCJ 130: 1953 SCR 377

Order 21, Rule 90.—Sale in execution.—Material irregularity.— Under declaration of price cannot demolish the value of sale.—In the instant case court accepted highest value after inviting well known industries in public and private.— Sale affirmed. M/s. Kayjay Industries (P) Ltd. v. M/s. Asnew Drums (P) Ltd. and others, AIR 1974 SC 1331: 1974(2) SCC 213: 1974(3) SCR 678

Order 21, Rule 90.—Setting aside of sale.—Considerations for.—Necessity of pleading of fraud or irregularity and the consequence of such fraud or irregularity.—Failure to mention prior charge on property in the proclamation of sale held to be not a serious irregularity vitiating the sale. That before an application made under Order 21, Rule 90 can succeed, the applicant has to show that the impugned sale was vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of the said irregularity or fraud, he had sustained substantial injury. Order 21, Rule 66(2)(c) requires that the proclamation shall be drawn up and shall specify as fairly and accurately as possible any encumbrance to which the property sought to be sold is liable. The failure to mention the charge in favour of respondent No. 1 would, therefore, constitute an irregularity within the meaning of Order 21 Rule 90(1). We do not think it can be reasonably assumed as a matter of law that in every case where a charge has become unenforceable against an auction- purchaser by reason of the fact that it was not shown in the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant facts. How many properties have been sold at the auction sale, how many out of them were the subject-matter of the charge; what is the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these and other relevant matters must be considered before deciding whether or not the injury suffered by the charge -holder is substantial. Laxmi Devi v. Mukand Kanwar and others, AIR 1965 SC 834: 1965(2) Mad LJ (SC) 133: 1965(2) SCA 521: 1965(1) SCR 726

Order 21, Rule 90.—Setting aside of sale .—Injury to Judgment debtor.— Determination of.—Express pleading of substantial injury is not necessary .—Substantial injury can be inferred from the circumstances alleged in the petition. The High Court was not unjustified on the material to hold that the application for setting aside the sale was bald and there was no proper allegation of substantial injury to the judgment debtors. Sometimes however, there may not be express allegations of substantial injury and the same may appear to be implicit from all facts and circumstances alleged. In the present case, the Trial Court as well as the first Appellate Court heard the parties and decided the case on the footing that there were allegations of substantial injury to the judgment debtors. Putti Kondala Rao and others v. Vellamanchili Sitarattamma and another, AIR 1976 SC 737: 1976(1) SCC 712: 1976(2) SCR 998

Order 21, Rule 90.—Setting aside of sale .—Res judicata.—Application of.— The earlier application rejected.— Second application is barred by res judicata. There can be no doubt that when an application for setting aside the sale is made, the order passed by the executing court either allowing or dismissing the application will be final and effective subject to an appeal that may be made under the provisions of the Code. It is inconceivable that even though no appeal has been filed against an order dismissing an application for setting aside the sale, another application for setting aside the sale can be made without first having the order set aside. Such an application will be barred by the principle of res judicata. Ganpat Singh (dead) by LRs. v. Kailash Shankar and others, AIR 1987 SC 1443: 1987(3) SCC 146: 1987(3) SCR 355: 1987(1) Scale 1273: 1987(2) J.T. 619: 1987(2) APLJ (SC) 32

Order 21, Rule 90.—Auction sale.—Setting aside of.—No allegation of fraud or material irregularity in conducting auction sale.—Mere inadequacy of price not a ground to set aside sale by Court.

The other ground for setting aside the sale is the inadequacy of the price. The respondents have not alleged any fraud or material irregularity in the conduct of the Court's auction sale, whereby they suffered injustice. Mere inadequacy of the price is not a ground for setting aside the Court sale.# Rajender Singh vs. Ramdhar Singh and others, AIR 2001 SC 2220 : 2001(6) SCC 213 : 2001(S1) JT 95 : 2001(2) Civ CR 584

Order 21, Rule 90.—Execution proceedings.—Objections filed under Order 21, Rule 90 for setting aside auction sale on ground of material irregularity and fraud in conducting auction sale.—Objections rejected by Executing Court on ground that Judgment Debtor had not furnished adequate material to substantiate allegations of material irregularity and fraud.—No infirmity in execution proceedings and sale of property in favour of auction purchaser.—Auction sale cannot be set aside.

Learned counsel appearing for the appellant contended that since there was material irregularity and fraud in conducting the auction sale of the property in dispute, it was incumbent upon the Executing Court to have set aside the auction sale. The Executing Court in its order had held that the judgment-debtor/objector did not furnish adequate of fraud and material irregularity. Even if we assume here for the sake of argument that there was material irregularity in conducting the sale of the property, we do not find any pleading by the objectors in their objections that on account of such material irregularity they were put to substantial injury. In the absence of such pleading, it was not open to the Executing Court to set aside the auction. Learned counsel then urged that there was an injunction by the Civil Court restraining the Executing Court from confirming the sale and as such the confirmation the sale of house was totally erroneous. It may be noticed here that the suit was filed at the instance of other co-sharers of the judgment-debtor and not by the judgment-debtor himself. It appears that after the objection of the judgment-debtor was decided by the Executing Court the sale was confirmed.# Sri Ram Maurya vs. Kailash Nath and others, AIR 2000 SC 3402 : 2000(1) Hindu LR 292 : 2000(1) Marri LJ 581 : 2000(2) Cur CC 17 : 2000(2) BLJ 297

Order 21, Rules 90 and 91.— Certificate of sale.—Construction of .—Such certificate is a document of title which ought not to be lightly regarded or loosely construed. P. Udayani Devi v. V.V. Rajeshwara Prasad Rao and another, AIR 1995 SC 1357: 1995(3) SCC 252: 1995(2) Scale 43: 1995(3) JT 523: 1995 Civ. CR (SC) 549

Order 21, Rules 92(1) and 58(a).— Auction sale.—Sale certificate.— Challenge by plea of benami.—The title of auction purchaser cannot be challenged after the sale certificate is issued by the Court. Ghanshyamdas and another v. Om Parkash and another, AIR 1994 SC 1292: 1993 Supp(3) SCC 368: 1993(2) Scale 187: 1993(3) JT 563: 1993(3) RCR 118

Order 21, Rules 97, 100 and 101.— Execution of decree.—Obstruction on independent title.—Co-owner admitting the title of the person in possession.— Occupant not bound by decree.— Execution of decree against occupant not permissible. Ram Chandra Verma v. Shri Jagat Singh Singhi and others, AIR 1996 SC 1809: 1996(8) SCC 47: 1996(2) Scale 314: 1996(2) JT 494: 1996(1) Mad LJ 65

Order 21, Rules 97, 98, 100 and 101 .—Execution of decree.—Obstruction on independent title.—Court is required to determine the question before ordering removal of the obstruction. An adjudication is required to be conducted under Order 21, Rule 98 before removal of the obstruction caused by the object or the appellant and a finding is required to be recorded in that behalf. The order is treated as a decree under Order 21, Rule 103 and it shall be subject to an appeal. The determination of the question of the right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98 which is an order and is a decree under Order 21, Rule 103 for the purpose of appeal subject to the same conditions as to an appeal or otherwise as if it were a decree. Thus, the procedure prescribed is a complete code in itself. Therefore, the executing Court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance. Babulal v. Raj Kumar and others, AIR 1996 SC 2050: 1996(3) SCC 154: 1996(2) Scale 438: 1996(2) JT 716: 1996(2) Raj. LW 23

Order 21, Rules 98 and 99.— Execution of decree.—Obstruction on independent title.—The objector has a right to remain in possession is subject to adjudication.—Pending adjudication, eviction of tenant without due process of law, not permissible. Without any decree or order of eviction of the appellant from the demised premises, he has been unlawfully dispossessed from the premises without any due process of law. The question, therefore, is: whether he should be allowed to remain in possession till his application under Order 21, Rules 98 and 99 is adjudicated upon and an order made. At this stage we are only concerned with his admitted possession of the demised premises. What rights would flow from a contract between him and his employer is a matter to be adjudicated in his application filed under Order 21, Rules 98 and 99, CPC. At this stage, it is premature to go into and record any finding in that behalf. We find that high-handed action taken by the respondent Nos. 1, 3 and 6 in having the appellant dispossessed without due process of law, cannot be overlooked nor condoned. The Court cannot blink at their unlawful conduct to dispossess the appellant from demised property and would say that the status que be maintained. If the court gives acceptance to such high-handed action, there will be no respect for rule of law and unlawful elements would take hold of the due process of law for ransom and it would be put to ridicule in the estimate of the law-abiding citizens and rule of law would remain a mortuary. Samir Sobhan Sanyal v. Tracks Trade Pvt. Ltd. and others, AIR 1996 SC 2102: 1996(4) SCC 144: 1996(4) Scale 266: 1996(5) JT 74: 1996 HRR 395

Section 97.—Amendment of Code.—Effect of.—Addition of Rule 72-A in Order 21.—The amended provision shall have overriding effect on the local amendment introduced in the Code. The effect of Section 97(1) is that all local amendments made to any of the provisions of the Code either by a State Legislature or by a High Court which were inconsistent with the Code as amended by the Amending Act stood repealed irrespective of the fact whether the corresponding provision in the Code had been amended or modified by the Amending Act and that was subject only to what was found in sub-section (2) of Section 97. Sub-section (3) of Section 97 provides that save as otherwise provided in sub-section (2) the provisions of the Code as amended by the Amending Act shall apply to every suit, proceeding, appeal or application pending at the commencement of the Amending Act or instituted or filed after such commencement notwithstanding the fact that the right or cause of action in pursuance of which such suit, proceeding, appeal or application is instituted or filed had been acquired or had accrued before such commence- ment. Sub-section (3) of Section 97 sets at rest doubts, if any, by making the Code as amended by the Amending Act applicable to all proceedings referred to therein subject to sub- section (2) of Section 97. Ganpat Giri v. IInd Additional District Judge, Balia and others, AIR 1986 SC 589: 1986(1) SCC 615: 1986(1) SCR 15: 1986(1) Scale 21: 1986 All. LJ 271: 1986(99) Mad. LW 481

Section 47.—Appealable Order.— Direction to hand over possession in satisfaction of decree.—Direction of this nature is in the nature of execution subject to appeal. Balak Singh v. Waqf Alu-Allah Kavamkarda Ahmad Ullah Khan Saheb, AIR 1969 SC 1270: 1970 (1) SCR 46: 1969(2) SCC 39

Section 47.—Bar to subsequent suit .—Application of.—Earlier suit for partition compromised but no decree passed for want of necessary stamp paper.—Subsequent suit for recovery of possession is not barred. Brij Kishore Prasad Singh and others v. Jaleshwar Prasad Singh and others, AIR 1973 SC 1130: 1973 Pat LJR 370: 1973(1) SCC 672: 1973(3) SCR 562

Section 47.—Bar to suit.—Sale of property in execution of decree.— Property of persons not bound by decree sold in execution.—Challenge to attachment and sale by way of suit is not barred. Ameena Bi v. Kuppuswami Naidu and others, AIR 1993 SC 1628: 1993(2) SCC 405: 1993(1) Scale 582: 1993(4) JT 68: 1993(1) An LT 68

Section 47.—Decision of Executing Court.—-Appeal.—Permissibility.—The decision is in the nature of a decree and therefore, is appealable under the Code. Shakuntala Devi Jain v. Kuntal Kumari and others, AIR 1969 SC 575: 1969 (1) SCJ 912: 1969(1) SCR 1006

Section 47.—Equitable set off.— Permissibility.—In certain cases the Court has power to allow a set off even though it may not strictly fall under Rule 18 of Order 21 of the Code. M/s. Lakshmichand & Balchand v. State of Andhra Pradesh, AIR 1987 SC 20: 1987(1) SCC 19: 1987(1) SCR 188: 1986(2) Scale 725: 1986 J.T. 785: 1986 APLJ 45

Section 47.—Eviction of sub-lessee .—Execution against assignee.— Permissibility.—Suit by Manager of Muth to recover possession of property improperly alienated by his predecessor.—The principle has no application. Shri Jagadguru Gurushiddaswami Guru Gangadharswami Murusavirmath v. The Dakshina Maharashtra Digambar Jain Sabha, AIR 1953 SC 514: 1953 SCJ 730: 1954 SCR 235

Section 47.—Excessive execution.— Remedy of.—Sale in execution of decree impugned that it was not warranted in terms of decree.—This question can only be raised by moving an application under the provisions and not by way of a separate suit. Merla Ramanna v. Nallaparaju and others, AIR 1956 SC 87: 1956 (SC) SLJ 101: 1955(2) SCR 938

Section 47.—Execution of decree.— Bona fide transfer of property.— Property of deceased judgment debtor transferred by legal heirs without knowledge of execution and prior to appointment of receiver.— Subsequent auction sale of properties held to be not valid. Amiya Prosad Sanyal and another v. Bank of Commerce Limited (in liquidation) and others, AIR 1996 SC 1762: 1996(7) SCC 167: 1996(1) Scale 171: 1996(1) JT 148: 1996 BLJR 1174

Section 47.—Execution of decree.— Power of executing Court.—It has no jurisdiction to go behind the decree to implead third parties to it who are not persons claiming right title and interest through decree holder.—It also does it have the power to pass an independent decree in favour of third persons. Ramesh Singh (Died) by LRs and others v. State of Haryana and others, AIR 1996 SC 3066: 1996(4) SCC 469: 1996(2) Scale 839: 1996(5) JT 467: 1996 LACC 374

Section 47.—Execution of decree.— Acquiescence.—Failure to challenge the jurisdiction of the court executing the decree.—The judgment debtor cannot raise the plea of lack of jurisdiction after the sale of property in execution. Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65: 1953 SCJ 130: 1953 SCR 377

Section 47.—Execution of decree.— Adjudication of question.— Transferee pendent lite is also entitled to be heard by executing court. Even a transferee pendente lite is representative of his transferor within the meaning of sub-section (3) of Section 47. One who claims to be transferee by operation of law would as well be a representative and if his claim to be a representative is disputed either by the opposite party or by the party under whom he claims, such dispute must also be resolved by the executing Court itself. The word representative used in Section 47 is obviously much wider than the words legal representative as used in Section 50 of the Code. If a person approaches the execution Court claiming that he is the representative of decree-holder's interest in the decree and the decree-holder disputes it, the execution Court has to resolve the dispute for proceeding with the execution of the decree. Gangabai Gopaldas Mohata v. Fulchand and others, AIR 1997 SC 1812: 1997(1) Scale 1: 1997(1) JT 343: 1997(10) SCC 387: 1997(2) All. WC 930: 1997(2) Mah. LJ 561

Section 47.—Execution of decree.— Amendment of decree.—Permissibility.—No clerical or arithmetical mistake.—Amendment of decree to grant benefit of additional amount under Section 23(1-A), 23(2) and 28 of Land Acquisition Act, 1894, not permissible.—Such order of executing Court is without jurisdiction. Bai Shakriben (dead) by Natwar Melsingh and others v. Special Land Acquisition Officer and another, AIR 1996 SC 3323: 1996(4) SCC 533: 1996(4) Scale 636: 1996(5) JT 597: 1996(2) Ker. LT 280

Section 47.—Execution of decree.— Composite decree.—Decree against mortgaged property as also personally against defendants.—The decree holder cannot be compelled to proceed against mortgaged property first and guarantor later. The decree for money is a simple decree against the judgment-debtors including the guarantor and in no way subject to the execution of the mortgage decree against the judgment- debtor No. 2. If no principle a guarantor could be sued without even suing the principal debtor there is no reason, even if the decretal amount is covered by the mortgaged decree, to force the decree-holder to proceed against the mortgaged property first and then to proceed against the guarantor. It, of course, depends on the facts of each case how the composite decree is drawn up. But if the composite decree is a decree which is both a personal decree as well as mortgage decree, without any limitation on its execution, the decree-holder, in principle, cannot be forced to first exhaust the remedy by way of execution of the mortgage decree alone and told that only if the amount recovered is insufficient, he can be permitted to take recourse to the execution of the personal decree. The guarantor in the present suit never took any plea to the effect that his liability is only contingent if remedies against the principal debtors fail to satisfy the dues of the decree-holder. If such a plea had been taken and the Court trying the suit had considered the plea and gave any finding in favour of the guarantor, then it would have been a different position. But in the present case, on the face of the decree, which has become final, the Court cannot construe it otherwise than its tenor. No executing Court can go beyond the decree. All such pleas as to the rights, which the guarantor had, had to be taken during trial and not after the decree while execution is being levied. State Bank of India v. Messrs. Indexport Registered and others, AIR 1992 SC 1740: 1992(3) SCC 159: 1992(1) Scale 1109: 1992(4) JT 273: 1992(2) APLJ 52

Section 47.—Execution of decree.— Compromise decree.—Decree contrary to statutory provision and therefore claimed as nullity.—The Executing Court can examine the relevant material and pleadings to find out the validity of decree. It is true that a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties. The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. Thus dispensing with further proof, on account of the compromise, the court is to be satisfied about compliance with the statutory requirement on the totality of facts of a particular case bearing in mind the entire circumstance from the stage of pleadings upto the stage when the compromise is effected. When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in law. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing court will have to give effect to it. Smt. Nai Bahu v. Lala Ramnarayan and others, AIR 1978 SC 22, 1978(1) SCC 58: 1978(1) SCR 723: 1978(1) RCR 211: 1978 MPLJ 1

Section 47.—Execution of decree.— Compromise decree.—Parties agreeing that the tenant shall be evicted after ten years when he shall hand over the vacant possession to the land lord.—Failure to vacate the premises.—The appropriate course is to seek eviction by appropriate suit .—Execution of compromise decree to seek eviction, not maintainable. Bibekananda Bhowal (dead) by LRs v. Satindra Mohan Deb (dead) by LRs., AIR 1996 SC 1985: 1996(9) SCC 292: 1996(3) Scale 567: 1996(4) JT 597

Section 47.—Execution of decree.— Compromise in execution.— Postponement of execution in lieu of payment of higher rate of interest.— Execution of such compromise by the executing court itself is permissible. The executing Court can determine all questions relating to the agreement postponing the execution of the decree and the incidental term as to payment of the higher rate of interest. The agreement to pay the higher interest is enforceable in execution of the decree. The jurisdiction of the executing Court to enforce such a compromise is not taken away by Order 23, Rule 4 of the Code of Civil Procedure. The effect of Order 23, Rule 4 is that Order 23, Rule 3 does not apply to execution proceedings. Independently of Order 23, Rule 3, the provisions of Order 21, Rule 2 and Section 47 enable the executing Court to record and enforce such a compromise in execution proceedings. Nor does Order 20, Rule 11(2) affect this power of the executing Court. Order 20, Rule 11, enables the Court passing the decree to order postponement of the payment of the decretal amount on such terms as to the payment of interest as it thinks fit on the application of the judgment-debtor and with the consent of the decree-holder. It does not affect the power of the executing Court under Section 47 and Order 21, Rule 2. Order 20, Rule 3 should be read with Order 20, Rule 11 which shows that after the passing of the decree the Court may order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to payment of interest as it thinks fit. The two provisions read together show that a direction for postponement of payment of the decretal amount upon the term that the judgment-debtor should pay a reasonable rate of interest is not an alteration of or addition to the decree. Moti Lal Banker v. Maharaj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087: 1968 (2) Andh LT 220: 1968(3) SCR 158 Section 47.—Execution of decree.— Conditional decree.—Failure to comply with the condition of payment of court fee.—The decree cannot be executed. Assistant Custodian-General of Evacuee Property and another v. Lila Devi and another, AIR 1980 SC 2080: 1980(4) SCC 224

Section 47.—Execution of decree.— Consent decree.—Agreement between the parties stipulating ascertainment of the same.—Failure of parties to ascertain the same does not effect the right to seek execution of decree. Ratan Lal Goenka v. Madhab Prasad Goenka, AIR 1974 SC 2299: 1973(2) SCC 642

Section 47.—Execution of Decree.— Construction of decree.—Duty of executing Court to ascertain true effect of decree.—Consideration of pleadings as well as judgement in the suit.—Permissibility. It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the execution Court does not appear to have considered those documents. If one reads the order of that Court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another, AIR 1972 SC 1371: 1973(2) SCC 40

Section 47.—Execution of decree.— Death of Judgment Debtor.— Subsequent suit seeking declaration against the Estate of deceased can be treated as execution application. The suit could as a measure of ex debaito justitiae be treated as an execution petition. There is good authority for converting an execution application into a suit and there could, in our opinion be no valid objection to the counter-process of converting a suit into an execution proceeding, particularly when an ill-advised widow would on account of some procedural error be likely to be deprived of the fruits of an order of maintenance. Smt. Nandarani Mazumdar v. Indian Airlines and others, AIR 1983 SC 1201: 1983(4) SCC 461: 1983(2) Scale 173: 1983(2) DMC 395

Section 47.—Execution of decree.— Declaratory Decree.—Meaning of execution. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain possession of the property. Parkash Chand Khurana v. Harnam Singh and others, AIR 1973 SC 2065: 1973(2) SCC 484: 1973(3) SCR 802

Section 47.—Execution of decree.— Decree beyond judgment.—Inconsistency in the judgment vis- a- vis a decree prepared on that basis .—The question could be agitated before the executing Court. Babusaheb Singh and others v. Parsid Narain Singh and others, AIR 1991 SC 1731

Section 47.—Execution of decree.— Decree of specific performance.— Properties not delivered in terms of the decree.—Alternate relief of compensation for the property not delivered can not be granted in execution proceedings. Madhya Pradesh Electricity Board, Rampur v. M/s. Central India Electric Supply Company Ltd. and others, AIR 1995 SC 1456: 1995(1) SCC 364: 1995(1) Scale 54: 1995(1) JT 312: 1995(1) CCC 216 Section 47.—Execution of decree.—Detention in civil prison .—Considerations for.—Execution of decree against Partner of a firm who over drew from the account.—Decree passed in suit for dissolution.—No allegation of fraud.—Execution by detention in civil prison is not permissible. Prem Ballabh Khulbe v. Mathura Datt Bhatt, AIR 1967 SC 1342: 1967 All LJ 325: 69 Pun LR 290: 1967 MPLJ 494: 1967(2) SCR 298

Section 47.—Execution of decree.— Discharge of decree.—Out of Court uncertified payment not recorded by Court is liable to be ignored.—The general power of executing Court to decide all questions arising in execution is subject to restriction imposed by Order 21, Rule 2. Section 47 gives full jurisdiction and power to the executing Court to decide all question relating to execution, discharge and satisfaction of the decree. Order XXI, Rule 3, however, places a restraint on the exercise of that power by providing that the executing Court shall not recognise or look into any uncertified payment of money or any adjustment of decree. If any such adjustment or payment is pleaded by the judgment-debtor before the executing Court, the latter, in view of the legislative mandate, has to ignore it if it has not been certified or recorded by the Court. The general power of deciding questions relating to execution, discharge or satisfaction of decree under Section 47 can thus be exercised subject to the restriction placed by Order XXI, Rule 2 including sub-rule (3) which contain special provisions regulating payment of money due under a decree outside the Court or in any other manner adjusting the decree. The general provision under Section 47 has, therefore, to yield to that extent to the special provisions contained in Order XXI, Rule 2 which have been enacted to prevent a judgment-debtor from setting up false, or cooked-up pleas so as to prolong or delay the execution proceedings. If Section 47 and Order XXI, Rule 2 are read together, as has been done by us in this case, the so-called conflict (we say `so-called' as, in fact, there is none) stands dispelled by employing the rule of `harmonious construction' or the other rule that the general provision must yield to the special provision. Sultana Begum v. Prem Chand Jain, AIR 1997 SC 1006: 1997(1) SCC 373: 1996(9) Scale 55: 1996(11) JT 1: 1997(1) Raj. LW 53: 1997(2) Mad. LW 521

Section 47.—Execution of decree.— Fraudulent or collusive decree.— Decree against minor.—Negligence or gross negligence of next friend.—It would be permissible for minor to avoid decree without filing another suit. In cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking Section 44, of the Evidence Act without taking resort to a separate suit for setting aside the decree or judgment. Asharfi Lal v. Smt. Koili (dead) by LRs., AIR 1995 SC 1440: 1995(4) SCC 163: 1995(2) Scale 827: 1995(5) JT 496: 1995 Civ. CR (SC) 782: 1995 All LJ 1154

Section 47.—Execution of decree.— Grant of symbolic possession.— Mistake of granting excess land beyond the terms of decree.—The mistake rightly corrected by the Executing Court. Balwant Singh and others v. Gurbachan Singh and others, AIR 1993 SC 136: 1993(1) SCC 442: 1992(2) Scale 807: 1992(6) JT 174: 1993(1) Pun LR 720

Section 47.—Execution of decree.— Inexecutable decree.—Change in law divesting decree holder from his title in property.—Execution of decree of pre-emption not possible.—Decree became incapable of execution. All rights and title in that proprietary land ceased to exist and vested to the State, the decree to that extent became devoid of substance inasmuch as the proprietary interests with regard to which alone the decree was passed had vested in the State and nothing survived in favour of the erstwhile proprietors, the appellant or the vendors. The appellant could execute the decree for delivery of possession only on the basis that he had the proprietary right in the land on the basis of which, as a co-sharer therein, he had obtained the decree of pre-emption. Now, since there is vesting of the property under the Act and emergence of a new specifies of property, which was not even the subject matter of the decree, the present decree becomes incapable of execution. The old property became extinct and the proprietors including the appellant had nothing left with them after the vesting in the State and necessarily, therefore, the decree cannot be executed for that reason. It would have been possible to execute the decree only if the interests in the land as such survived in the proprietors. Land can be understood only with reference to the rights in the land and when the old rights give place to the emergence of new rights, a decree with reference of the old rights cannot be executed when that has already lapsed under the Act. Vidya Sagar v. Smt. Sudesh Kumari and others, AIR 1975 SC 2295: 1976(1) SCC 115: 1976(2) SCR 193

Section 47.—Execution of decree.—Limitation.—All steps taken to execute the decree.—Case not lying dormant for 12 years.—Decree not fully satisfied despite orders of sale of different properties.—Decree not barred by limitation. Parbati Debi and others v. Mahadeo Prasad Tibrewalla, AIR 1979 SC 1915: 1979(4) SCC 761: 1980(1) SCR 156

Section 47.—Execution of decree.— Limitation.—Attachment of decree in execution of another decree resulting in dismissal of execution application .—Subsequent application filed within three years from the date of revocation of order of attachment is not barred by limitation. Santi Ranjan Dass Gupta v. M/s. Dasuram Mirzamal, AIR 1976 SC 2486: 1976(2) SCC 188: 1976(3) SCR 625

Section 47.—Execution of decree.— Maintenance.—Charge created over several properties.—Manner of execution. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amounts cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirety to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge- holder and those that remain. It is not permissible to seek an analogy from the cease of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage, there is a personal liablity express or implied but in the case of charge there is no such personal liability and the decree, if it seeks to charge the judgment-debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellant's contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill founded. The charge can be enforced against all the properties or severally. Janapareddy Latchan Naidu v. Janapareddy Sanyasamma, AIR 1963 SC 1556: 1964 Andh WR (SC) 19: 1964(1) Mad LJ (SC) 19: 1964(1) SCR 920

Section 47.—Execution of decree.— Manner of execution.—Composite decree granted against the Principal Debtor, Guarantor and the Mortgaged property.—The decree holder should proceed against the mortgaged property first. The decree in execution is a composite decree, personally against the defendants including the respondent and also against the mortgaged property. We do not pause to consider whether the two portions of the decree are severable or not. We are of the view that since a portion of the decreed amount is covered by the mortgage the decree-holder Bank has to proceed against the mortgaged property first and then proceed against the guarantor. Union Bank of India v. Manku Narayana, AIR 1987 SC 1078: 1987(2) SCC 335: 1987(1) Scale 669: 1987(2) J.T. 24: 1987 Pat. L.J.R. 42

Section 47.—Execution of decree.— Money decree.—In the absence of any direction in this regard, the executing court is not entitled to grant interest over the amount of decree. The decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder consequent to the declaration made by the Court decreeing the respondent's suit. There is further no dispute that no relief for interest had been claimed by the respondent in the suit nor any such claim was discussed or awarded by the Court decreeing the suit. In the absence of pleadings and directions in the judgement or decree, which was under execution, it was not open to the executing court to award interest. The Execution Court is bound by the terms of the decree, it cannot add or alter the decree on its notion of fairness or justice. State of Punjab and others v. Krishan Dayal Sharma, AIR 1990 SC 2177: 1990(4) SCC 366: 1990(3) SCR 441: 1990(3) JT 267

Section 47.—Execution of decree.— Money decree.—Postponement of liability against surety till the decree is executed against joint family.—Such postponement is not permissible.—Decree amended accordingly. Joint Family of Mukundas Raja Bhagwandas & Sons and others v. The State of Bank of Hyderabad etc., AIR 1971 SC 449: 1971(1) An WR (SC) 110: 1971(1) MLJ (SC) 110: 1970(2) SCC 766: 1971(2) SCR 136

Section 47.—Execution of decree.— Mutual obligation created by decree .—Unless parties seeking execution do not perform its part of obligation, the decree cannot be executed. Chen Shen Ling v. Nand Kishore Jhajharia, AIR 1972 SC 726

Section 47.—Execution of decree.— Non-joinder of parties.—Effect on sale in execution of decree.—It does not affect the right of the person entitled to equity of redemption in the property and decree passed is subject to such right. A sale in execution of a decree passed in a defectively constituted mortgage does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under Order 34, Rule 1, C.P.C. but that it is valid and effective as against affirmed even when the person in whom the equity of redemption had vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale. Even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshayananda, his non- joinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite. Nagubai Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593: 1956 And LJ 1029: 1956 SCR 451

Section 47.—Execution of decree.— Null and void decree.—Determination of.—Decree made void by statute with retrospective effect by taking away jurisdiction of civil court and vesting it in Special Tribunal.—The executing court can entertain such objection. An executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidy can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree, which is a nullity, is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Sunder Dass v. Ram Parkash, AIR 1977 SC 1201: 1977(2) SCC 662: 1977(3) SCR 60: 1977(1) RCJ 575

Section 47.—Execution of decree.— Nullity.—Decree passed by the Court without jurisdiction.—Such defect of jurisdiction which could not be cured by consent or waiver of party.— Defence of nullity can be set up whenever such decree is sought to be enforced. Urban Improvement Trust, Jodhpur v. Gokul Narain and another, AIR 1996 SC 1819: 1996(4) SCC 178: 1996(3) Scale 721: 1996(4) JT 446: 1996(2) Raj. LW 122

Section 47.—Execution of decree.— Objection to decree.—The executing court cannot go behind the decree.— Direction for payment of sum under a provision of Special Act cannot be challenged in execution. State of Punjab and others v. Mohinder Singh Randhawa and another, AIR 1992 SC 473: 1993 Supp (1) SCC 49

Section 47.—Execution of decree.— Obstruction on independent title.— Co-owner admitting the title of person in possession.—Occupant not bound by decree.—Execution of decree against such occupant not permissible. The appellant having been found in possession, he is entitled to obstruct execution defending his illegal dispossession in execution proceedings and he is also independently entitled to file application under Order 21, Rule 97 claiming his possession. In view of the fact that he was found to be in possession, the finding recorded by the Executing Court as upheld by the High Court that he is a license on behalf of Harkesh Rai Agarwal is clearly illegal. We, therefore, hold that the appellant cannot be ejected from the premises in his possession except in accordance with law. Ram Chandra Verma v. Shri Jagat Singh Singhi and others, AIR 1996 SC 1809: 1996(8) SCC 47: 1996(2) Scale 314: 1996(2) JT 494: 1996(1) Mad LJ 65

Section 47.—Execution of decree.— Obstruction on independent title.— Court is required to determine the question before ordering removal of the obstruction. Babulal v. Raj Kumar and others, AIR 1996 SC 2050: 1996(3) SCC 154: 1996(2) Scale 438: 1996(2) JT 716: 1996(2) Raj. LW 23

Section 47.—Execution of decree.— Omission to implead legal represen- tative.—Effect of.—Error in implead- ing a person as representative of estate who did not represent the deceased.—In the absence of fraud or collusion, the Court may hold a decree passed without such representation, to be binding on the estate of the deceased.—The principle is unaffected by the Personal Law or the religious persuasion by the parties. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded co-nominee in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion. N.K. Mohd. Sulaiman Sahib v. N.C. Mohd. Ismail Saheb and others, AIR 1966 SC 792: 1966(1) SCWR 331: 1966(1) SCR 937

Section 47.—Execution of decree.— Partnership firm.—The decree passed against the firm only while expressly excluding the Partners of the Firm impleaded as co-defendant in the suit.—Executing court cannot go behind the decree.—Execution of decree against personal property of partners is not permissible. When a personal decree was sought against respondents 2 to 6 on the same grounds that would have been open to the appellant for executing the decree against them under Order XXI, Rule 50, C.P.C., the learned Judge, for specific reasons mentioned by him, refused to give the appellant the said relief and expressly confined it to the assets of the firm to the hands of the partners. It is a well-settled principle that a Court executing a decree cannot go behind the decree: it must take the decree as it stands, for the decree is binding and conclusive between the parties to the suit. If the contention of the appellant were to be accepted, it would contravene the said principle; for, while the decree as contrued by us, has, directed that it should not be executed against the personal properties of the partners, the executing Court would be directing execution against the said partners. While the decree excluded personal liability, the executing Court would be imposing the same. This cannot obviously be done. Topanmal Chhotamal v. M/s Kundomal Gangaram and others, AIR 1960 SC 388

Section 47.—Execution of decree.— Personal money decree.—Charge also created on properties.—The question whether the Decree holder could seek personal remedy without first resorting to execution against the charged property, depends on the language of compromise decree. Where a compromise decree provides both for a personal remedy and a charge, the whole question depends on the intention to be gathered from the various terms in the compromise decree. It is true that in one sense, clause (c), (d) and (e) of the compromise indicate certain specified properties as being available to the decree-holder for realisation of any dues either by pursing the charge or by getting a Receiver appointed in respect of the charged properties. But the wording of the three clauses shows clearly that she is not obliged to resort to these two remedies in the first instance. Clause (c) says that the defendant No. 1 will be entitled to realise the amount in default by means of execution of decree. Clause (d) says that the defendant No. 1 will be at liberty to realise the amount in default against the properties charged. Clause (e) says that the defendant No. 1 will, at her option, be further entitled to realise the amount in default by appointment of Receiver for execution of this decree over the charged properties. It is quite clear that clause (c) gives her an unqualified right to obtain payment of the monthly allowance from the plaintiffs. Clauses (d) and (e) give her a liberty or option to pursue the remedies specified therein. There is nothing in these two clauses to limit, in any way, the unqualified right that she was given under clause (c). Our attention is drawn to the statement in clause (j) which says that each of the terms stated is a consideration for the other terms. What exactly is meant thereby is somewhat obscure. But we are unable to see how that clause affects the intention which, in our view, has to be gathered by reading clauses (c), (d) and (e) together. We are, therefore, of the opinion that the contention raised to the effect that the personal remedy is not available in this case before exhausting the charge properties, is not sustainable. Rajesh Kanta Roy v. Smt. Shanti Debi and another, AIR 1957 SC 255: 1957 SCR 77: 1955 SCJ 197

Section 47.—Execution of decree.— Power of executing Court.—scope of .—Discharge by satisfaction of decree.—Determination by Executing Court.—Permissibility. There is no doubt that the expression Court whose duty it is to execute the decree means a Court which is under the law competent to, and when requested bound to, execute the decree which is in law enforceable, and where an application is made under Order 21, Rule 1(1) (a) or under Order 21, Rule 2(1) or (2) there need (not?) be substantive application for execution pending. It also appears, from the terms of Clause (3) of Order 21, Rule 2 that the prohibition is against the Court executing the decree. But there is no warrant for the argument that the expression Court executing the decree as used in Section 47, C.P. Code means a Court which is seized of an application for execution of a decree at the instance of the decree-holder, Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words Court executing the decree. The expression Court executing the decree has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application not a condition of its exercise. An application made by the judgment-debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is a representative, was a party is an application before the Court executing the decree, and must be tried in that Court. M.P. Shreevastava v. Mrs. Veena, AIR 1967 SC 1193: 1967 All LJ 423: 1967 BLJR 487: 1967(1) SCR 147

Section 47.—Execution of decree.— Redemption of mortgage.—Restoration of possession.— Intermingling of land in question with other land in the course of consolidation proceedings.—Denial of decree of possession not proper and this aspect should be left to the executing court. The owners of the land as recorded got the post consideration holding intermingled with the pre-empted land, which land was in the meantime mortgaged in their favour. the land involved in the instant litigation had to be extricated from that conglomerated holding. The lower appellate Court was wrongly of the view that it could not be carved out in the instant suit. It could at best have left it to the executing Court but not deny the relief of actual possession. In this view of the matter, we allow the appeal and order the delivery of actual possession. Harnek Singh v. Harbax Singh and others, AIR 1990 SC 1978: 1990 Supp SCC 698

Section 47.—Execution of decree.— Registration of decree.—Necessity of.—Compromise decree in respect of machinery of an industry.—Finding of High Court that machinery being not embedded to earth, is immovable property hence decree does not require registration.—Execution of decree upheld. The High Court came to the conclusion that from the tenor of the compromise decree, it is clear that those properties are movable properties and therefore there was no need to register the decree. This is essentially a finding of fact. Unless it is shown that the items of machinery mentioned in the decree over which a charge had been created had been permanently embedded to earth, it is not possible to come to the conclusion that those items of machinery are immovable properties. If they are not immovable properties as held by the High Court, then there was no need to register the decree. It was for the judgment-debtor to show that the decree was invalid for the reasons mentioned by him. K.L. Selected Coal Concern v. S.K. Khanson & Co., AIR 1971 SC 437: 1971(3) SCC 965

Section 47.—Execution of decree.— Res judicata.—Application of principles of constructive res judicata .—Execution of decree barred in terms of Constitution (Schedule Tribes) Order 1950.—Failure to raise the objection during execution proceedings does not bar the objection against sale of property. Raghunath Pradhani v. Damodra Mahapatra and others, AIR 1978 SC 1820: 1979(1) SCC 508: 1979(2) SCR 196

Section 47.—Execution of decree.— Res judicata.—Application on execution proceedings.—Even if provision does not apply, principles of constructive res judicata apply. Kani Ram and another v. Smt. Kazani and others, AIR 1972 SC 1427: 1972(2) SCC 192: 1973(1) SCR 254

Section 47.—Execution of decree.— Scope of objections.—Objection to jurisdiction depending upon investigation of facts cannot be made for the first time in execution. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. Vasudev Dhanjibhai v. Rajabhai Abdul Rehman and others, AIR 1970 SC 1475: 1970 (2) SCJ 558: 1970 (2) Mad LJ (SC) 85: 1970(1) SCC_670

Section 47.—Execution of decree.— Scope of objections.—Execution of preliminary decree.—Objections about knocking out of the decree can be raised in execution proceeding. At the stage of the preliminary decree there arises no question of the property under mortgage being put to sale in execution of the decree, and if that is so the ultimate auction purchaser cannot be held seemingly to be a party to the suit up to the stage of the preliminary decree. In our opinion, the converse interpretation that the auction purchaser at a sale and execution of the final decree shall be deemed to be a party to the suit at and prior to the stage when preliminary decree is passed, unless sustaining, would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure. And since all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree are required to be determined by the Court executing the decree and not by a separate suit, the objection of the appellant judgment-debtor with regard to the knocking out of the original preliminary decree was to our mind sustainable. In terms of the preliminary appellate decree and fulfilment of the obligations of the defendants on payment of the sum as struck, there remained no occasion for entertaining, maintaining or sustaining the application of the plaintiff mortgagee for sale of the property mortgaged and on that basis the auction sale in favour of the auction purchasers and confirmation of that sale automatically becomes non est. Kumar Sudhendu Narain Deb v. Mrs. Renuka Biswas and others, AIR 1992 SC 385: 1992(1) SCC 206: 1991(2) Scale 990: 1991(4) JT 320: 1992 AWC 114

Section 47.—Execution of decree.— Substitution of parties.—Sale of property pending execution proceedings.—No sale deed brought on record.—Claim made on the basis of agreement to sell is not maintainable. Mrs. Dhanlaxmi G. Shah v. Miss Sushila Shiv Prasad Masurakir and others, AIR 1981 SC 478: 1980(1) SCC 596: 1980(1) RCR 106: 1979 Rajdhani LR 540

Section 47.—Execution of decree.— Successor challenged.—Predecessor in interest of objector challenging execution and challenge negatived.— Successor challenged execution not permissible. Section 47 postulates that all question arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. Explanation 1 added thereto by Amendment Act, 1976 postulates that for the purposes of this Section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit. The opportunity to object to executability of the decree could be taken only once and repeated applications appear to be unwarranted. It is not in dispute that petitioner's mother had already agitated the right title to the property and claimed that to the extent of her right, the execution was not valid in law. That right having been negatived and become final, the petitioner cannot have any higher right than the mother herself had. The petitioner having allowed the orders to become final, it would not be open to the petitioner to raise the contentions thereafter. Even otherwise also, as held by the High Court, the objection as to excess execution has not been raised. Though Order 21, Rule 90(3), CPC may not be strictly construed so as to put a fetter on the Court, due to non-raising of the objection before proclamation of sale and the objection could be raised even at a later stage, but since the title has already been lost and has become final, the petitioner cannot agitate the executability of the decree in the absence of any legal title to question the correctness of the execution. R.P.A. Valliammal v. R. Palanichami Nadar and others, AIR 1997 SC 1996: 1997(2) Scale 40: 1997(2) JT 449: 1997(10) SCC 209: 1997(2) Rec. Rev. R 679: 1997(2) Mad LJ 36

Section 47.—Execution of decree.— Territorial jurisdiction.—Objection of lack of territorial jurisdiction does not stand on the same footing as the objection on the ground of competence of the Court to try a case. Execution of decree cannot be resisted on the ground of want of territorial jurisdiction. The objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. Having consented to have the controversy between the parties resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the court to refer the matter to arbitration or of the arbitrator to render the award. Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199: 1961(2) Ker LR 555: 1961(2) Mad LJ (SC) 157: 1962(2) SCR 747.

Section 47.—Execution of decree.— Unexecutable decree.—Decree of specific performance without proof of valid and enforceable contract.— The decree of specific performance cannot be executed. The High Court, in our views, lost sight of the basic principle that no decree for specific performance can be made without proof of a valid and enforceable contract between the plaintiff and the defendant. The Union of India has not appealed against the decree of the High Court. Nevertheless, the decree against the Union of India cannot be executed against the second defendant, the appellant herein, for he cannot be adversely affected by a decree for specific performance when no valid and enforceable contract has been proved between the parties to the suit in respect of the house of which the appellant is the owner in possession. Sohan Lal (dead) by LRs. v. Union of India and another, AIR 1991 SC 955: 1991(1) SCC 438: 1990(2) Scale 1260: 1991(5) JT 102

Section 47.—Objection to execution of decree.—Dismissal in default.— Application of principle of res judicata. Before a plea can be held to be barred by the principles of res judicata, it must be shown that the plea in question had not only been pleaded but it had been heard and finally decided by the Court. A dismissal of a suit for default of the plaintiff, we think, would not operate as res judicata against a plaintiff in a subsequent suit on the same cause of action. If it was otherwise there was no need for the legislature to enact Rule 9, Order 9, Civil Procedure Code which in specific terms says that where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Shivashankar Prasad Sah and another v. Baikunth Nath Singh and others, AIR 1969 SC 971: 1969(3) SCR 908: 1969(1) SCC 718

Section 47.—Scope of.—Execution of decree.—Sale of property.—Purchase of property by decree holder in auction.—The executing court has jurisdiction to deal with all the questions raised by Judgement Debtor, till the delivery of possession, must be decided by Executing Court.If a liberal construction be put upon Section 47 it is difficult to understand why a decree-holder who has been a party to the decree will shed his character as such party merely upon purchasing the property at the execution sale. After all, a decree- holder purchases the property in execution of his decree with the permission of the Court. There is no reason why he should not retain his character of a party to the suit until the delivery of possession to him of the property purchased by him. Having regard to this consideration, if any question is raised by the judgment- debtor at the time of delivery of possession concerning the nature of the rights purchased and if the judgment- debtor offers any resistance to delivery of possession the question must be one which in our view relates to the execution, discharge and satisfaction of the decree and arises between the parties to the suit. All questions arising between the auction-purchaser and the judgment- debtor must in our view be determined by the executing Court and not by a separate suit. Harnandrai Badridas v. Debidutt Bhagwati Prasad, AIR 1973 SC 2423: 1973 Pun LJ 502: 1973(2) SCC 467: 1974(1) SCR 210

Section 47.—(Prior to Amendment in 1976).—Applicability.—Eviction order.—Not executed.—Suit property sold during pendency of eviction proceedings.—Fresh suit for eviction filed by purchaser.—Tenant claiming adverse possession in counter-affidavit.—Subsequent suit for possession based on title not barred under Section 47 of CPC on ground that suit was not one for execution of eviction order passed by Rent Controller in first eviction petition.

The High Court observed: “Reading of the entire plaint would show that plaintiff claimed a decree for possession by “virtually” praying to enforce the order of ejectment and on the basis of the plea of defendant being a tenant in the premises by virtue of a fresh contract of tenancy”. This view, in our opinion, cannot be accepted.

The defendant admitted in Para 8 of his written statement in the present suit as follows:

“Para 8 of the plaint is also emphatically denied except the pendency of the ejectment proceedings and the reply submitted thereto by the replying defendant.”

From the aforesaid averments in Para 8 of the plaint, it is obvious that the plaintiff referred to the fresh eviction case filed by Mr. Chopra in 1969 the present plaintiff, after the legal notice dated 24-7-1969. It was in that fresh rent control case that the respondent filed a counter stating that he was the owner of these four quarters and that he had prescribed title by adverse possession. This plea of the plaintiff was indeed admitted in Para 8 of the present written statement. Thus, the present suit is not one for execution of the eviction order passed in the first rent control case.

In our view, the High Court was, therefore, wrong in treating the present suit as one 'virtually' for execution of the order of eviction passed in the earlier rent control case. Hence the ban under Section 47 cannot apply.# Ajit Chopra vs. Sadhu Ram and others, AIR 2000 SC 212 : 2000(1) Land LR 281 : 1999(4) Cur CC 341 : 1999(9) ADSC 393 : 2000(1) SCC 114 : 2000(1) Raj LW 53 : 2000(124) Pun LR 19

Section 47.—Award.—Filing of.—Award decree passed by Court lacking jurisdiction.—Non-filing of objections by judgment debtor.—Effect.—Award decree becomes final.—Judgment-debtor neither contested nor raised plea that decree could not be passed.—He cannot contend in execution proceedings that decree be ignored being a nullity.

It is not the case of the respondent that the court which passed the decree was lacking inherent jurisdiction to pass such a decree. This becomes all the more so when the respondent did not think it fit to file objection against the award which was sought to be made rule of the court. But in the present case the award decree has become final and that too when the respondent-judgment debtor did not think it fit to contest the proceedings and did not contend that no decree could be passed. He cannot now, in execution proceedings, contend that the decree should be ignored as being a nullity.# Bhawarlal Bhandari vs. Universal Heavy Mechanical Lifting Enterprises, AIR 1999 SC 246 : 1998(4) Cur CC 135 : 1999 (1) Cal LJ 92 : 1999(1) SCC 558 : 1999 (1) Mad LW 247 1999(2) All CJ 809

Section 47.—Eviction decree.—Execution.—Question of bona fide requirement for reconstruction of building decided in favour of landlord.—Also no dispute that landlord was in possession on basis of permission granted by municipality.—High Court directions to executing Court to verify about landlord's possession on basis of valid permission before handing over possession.—Executing Court cannot go behind findings of trial Court.—Executing Court committed grave error in dismissing execution petition.# What the High Court had really intended was that the executing Court should verify before handing over possession of the suit premises whether the landlord was in possession of valid permit and permission or not. The High Court had not directed that validity of the permit and permission should be examined in the light of the building rules and regulations or the by-laws of the Area Development Authority and the Municipality.

The Appellate Authority, therefore, committed a grave error in dismissing the execution application and the High Court has also committed the same error by dismissing the writ application.# K.N. Karthikeyan (dead) vs. M.N. Sreenivasan and others, AIR 1998 SC 2081 : 1998(1) Ker LT 676 : 1998(3) SCC 520 : 1998(2) Scale 219.

Section 47.—Execution of decree.—Consequential relief.—Powers of Executing Court.—Government servant seeking grant of relief of declaration for continuance in service.—Consequential relief as to arrears of salary and interest thereon not claimed.—Executing Court not competent to grant relief not claimed in suit.—Decree relates to legal status of the government servant.—Court bound by terms of decree, cannot add or alter anything in it.

A declaratory decree merely declares the right of the decree holder vis-a-vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary the executing Court could not issue any process for the purpose as that would be going outside or beyond the decree. Respondent as a decree holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing Court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not flow directly and necessarily from the declaratory decree.

The provisions of law contained in Section 34 of the Specific Relief Act are specific and in that case even declaration could not have been granted as it could be said that respondent was able to seek further relief than a mere declaration of his legal status and which he omitted to do so.# State of Madhya Pradesh vs. Mangilal Sharma, AIR 1998 SC 743 : 1998(1) Andh LT 11 : 1998(2) SCC 510 : 1997(7) Scale 781 : 1998(1) Jab LJ 403

Section 47.—Execution of decree.—Manner of execution.—Eviction decree.—High Court passed the execution petition.—In appeal decree subsequently confirmed by the Supreme Court.—On the Confirmation of to decree by appellate Court, execution petition filed for execution of decree does not become not maintainable.—Filing of fresh execution petition is not necessary.

The execution petition No. 179/80 filed in the executing Court to execute the decree passed by the High Court pending. This Court had stayed the said execution proceedings pending disposal of the Civil Appeal No. 1365/80. After the disposal of the appeal, there was no impediment or bar to continue the execution proceedings on the application moved by the appellants to proceed with the execution. The High Court committed a manifest error in taking a view that a fresh execution petition should be filed after the dismissal of the appeal by this Court as the decree passed by the High Court and the execution petition filed earlier which was pending, was not maintainable. As already noticed above, this Court in appeal only confirmed the decree passed by the High Court without any alteration or modification. Even otherwise, in a pending execution case, amendment could be sought if it was needed after dismissal of the appeal by this Court. Under Order XXI Rule 11(2)(d) CPC, in the execution application the particular as to whether any appeal has been preferred from the decree is to be mentioned. If an appeal has been preferred from a decree and after disposal of the appeal. Necessary information can be given by filing an application, if need be seeking an amendment. It is one thing to say that the earlier decree passed gets merged in the decree passed by the appellate Court, yet it is different thing to say that an execution petition filed earlier is not maintainable and that there is a need to file a fresh application for execution after a decree is passed by the appellate Court, particularly in the present case, when this Court had stated the execution proceedings filed earlier, it was obvious that the execution proceedings could be continued after dismissal of the appeal by this Court without any alteration.# Krishna Gopal Chawla vs. State of U.P., AIR 2001 SC 3832 : 2001(7) Scale 136 : 2001(8) JT 551 : 2001(10) SRJ 282

Section 47.—Joint decree.—Execution .—One of coparceners assigned his interest in favour of Judgement Debtor.—Where interest of copar-ceners is indeterminate, decree can-not be given effect to before ascer-taining rights of parties.—Executing Court cannot find out shares of decree-holders.—Section 47, Order 21 Rule 15 enables joint decree-holder to execute decree in its entirety.

Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned add execution could lie only to the extent of remaining part of the decree. In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties decree can be executed as a whole since it is not divisible and it can be executed in part only where the share of the decree-holders are defined or those shares can be predicted or the share is not in dispute. Otherwise the executing Court cannot find out the shares of the decree-holders and dispute between joint decree-holders is foreign to the provisions of Section 47 C.P.C.# Jagdish Dutt and another vs. Dharam Pal and others, AIR 1999 SC 1694 : 1999(2) Mad LJ 85 : 1999(2) Land LR 226 : 1999(3) SCC 644 1999(3) Civ LJ 229

Section 47.—Protection of interest of decree holder.—Money suit.—Suit partly decreed with directions to Receiver to attach securities for non-payment of decretal amount.—Appeal by bank on quantum of decree, rate of interest and direction to respondents for payment of decretal amount.—Bank in appeal can seek directions to Receiver to take possession of suit properties to protect its securities.—Bank can also seek such directions in execution of decree.—Appellate Court also not precluded from giving appropriate directions during pendency of appeal to protect interests of appellant bank.

The claim of the appellant-Bank exceeds the amount for which the decree had been passed by the learned single Judge and the appeal relates to the balance amount of the said claim of the appellant-Bank and the security furnished by the respondents is towards the entire claim, the appellant-Bank, in order to protect its interest as regards the claim in respect of which the appellant-Bank has filed the appeals, could have sought directions from the Appellate Bench of the High Court to direct the Special Officers to take possession of the suit properties which are the securities for the appellant-Bank so that the said securities remain available in the event of the appellant-Bank succeeding in the appeals. The fact that the appellant-Bank could seek such a direction by moving for execution of the decree passed by the learned single Judge could not, in our opinion, preclude the Appellant Bench of the High Court from giving an appropriate direction during the pendency of the appeals in order to protect the interest of the appellant-Bank.# United Bank of India vs. B.T.W. Industries Ltd. and others, AIR 1998 SC 2354 : 1998(3) BLJR 1726 : 1998(1) Pat LJR 38 : 1998(1) SCC 630 : 1998(1) Rec Civ R 342

Section 60(1).—Attachment of salary.—Arrears of salary.—The protection available to salary does not extend to arrears of salary. Union of India v. Smt. Hira Devi and another, AIR 1952 SC 227: 1952 SCJ 326: 1952 SCR 765

Section 60(1)(g) and (k).—Attachment of Provident Fund.—Permissibility.—So long the amount due to employee is not actually paid to him, the amount is not liable for attachment. So long as the amounts are Provident Fund dues then, till they are actually paid to the government servant who is entitled to it on retirement or otherwise, the nature of the dues is not altered. What is more, that case is also authority for the benignant view that the government is a trustee for those sums and has an interest in maintaining the objection in court to attachment. Union of India v. Jyoti Chit Fund and Finance and others, AIR 1976 SC 1163: 1976(3) SCC 607: 1976(3) SCR 763

Section 60(n).—Attachment of maintenance.—Permissibility.—Assignment of property for maintenance .—Amount of maintenance not fixed.—The decree holder may get Receiver appointed over the property to make provision for maintenance and the balance amount be appropriated towards satisfaction of decree. Union of India v. Smt. Hira Devi and another, AIR 1952 SC 227: 1952 SCJ 326: 1952 SCR 765

Section 73.—Execution of decree.— Distribution of proceeds.—Priority of Government debt.—Application of. The Government of India was entitled to claim priority for arrears of income-tax due to it from a citizen over debts from him to unsecured creditors and that the English Common Law doctrine of the priority of Crown debts has been given judicial recognition in the territory known as British India prior to 1950 in regard to the recovery of tax dues in priority to other private debts of the taxpayer. The English Common Law doctrine having been incorporated into Indian law, was a law in force in the territory of India, and, by virtue of Art. 372(1) of the Constitution of India, it continued to be in force in India until it was validly altered, repealed or amended. Collector of Aurangabad and another v. Central Bank of India and another, AIR 1967 SC 1831: 70 Bom LR 146: 1968 MPLJ 149: 1968 Mah LJ 239: 1967(3) SCR 855

Section 73.—Recovery of arrears of revenue.—Procedure.—Priority of State to recover over other debts.—Scope of.—Sale of attached property in execution of money decree.—The State is entitled to recover the amount from the decree holder who took away the sale proceeds. It is a general principle of law that debts due to the State are entitled to priority over all other debts. If a decree holder brings a judgment-debtor's property to sale and the sale-proceeds are lying in deposit in Court, the State may, even without prior attachment exercise its right to priority by making an application to the executing Court for payment out. If however the State does not choose to apply to the Court for payment of its dues from the amount lying in deposit in the Court but allows the amount to be taken away by some other attaching decree holder, the State cannot thereafter make an application for payment of its dues from the sale proceeds since there is no amount left with the Court to be paid to the State. However, if the State had already effected an attachment of the property which was sold even before its sale, the State would be entitled to recover the sale proceeds from whoever has received the amount from the Court by filing a suit. Section 71(3) read with 73(2) C.P.C. contemp- lates such a relief being granted in a suit. Union of India v. M/s. Somasundaram Mills (P.) Ltd. and another., AIR 1985 SC 407: 1985(2) SCC 40: 1985(1) Scale 188: 1985(1) Andh LT 434

Sections 37, 38 and 39.—Execution of decree.—Territorial jurisdiction.— The Court which had passed the decree ceasing to have jurisdiction over the subject matter after the passing of decree.—It continue to have jurisdiction over execution of its decree alongwith the court which now have the jurisdiction over the subject-matter. It is common ground that when the present suit was instituted in the District Court, East Godavari, it had jurisdiction over the properties, which are the subject-matter of this suit. It is true that by itself this is not sufficient to make the District Court of East Godavari the Court which passed the decree for purpose of Section 38, because under Section 37, it is only when the Court which passed the decree has ceased to have jurisdiction to execute it that the Court which has jurisdiction over the subject-matter when the execution application is presented can be considered as the Court which passed the decree. The Court to whose jurisdiction the subject-matter of the decree is transferred acquires inherent jurisdiction over the same by reason of such transfer, and that if it entertains and execution application with reference thereto, it would at the worst be an irregular assumption of jurisdiction and not a total absence of it, and if objection to it is not taken at the earliest opportunity, it must be deemed to have been waived, and cannot be raised at any later stage of the proceedings. Merla Ramanna v. Nallaparaju and others, AIR 1956 SC 87: 1956 (SC) SLJ 101: 1955(2) SCR 938

Section 38.—Execution of decree.— Simultaneous execution at several places.—Permissibility. Simultaneous execution proceeding in more places than one is possible but the power issued sparingly in exceptional cases by imposing proper terms so that hardship does not occur to judgment-debtors by allowing several attachments to be proceeded with at the same time. Prem Lata Agarwal v. Lakshman Prasad Gupta and others, AIR 1970 SC 1525: 1970 Ker LJ 649

Section 39.—Execution of decree.— Transmission of decree for execution .—Procedure.—There is not pre-scribed form of application for transmission.—The court may suo motu transmit the decree for execution. The Civil Procedure Code does not prescribe any particular form for an application for transmission of a decree under Section 39. Under sub-section (2) of that section the Court can even suo motu send the decree for execution to another Court. It is true that Order 21, Rule 6 provides that the Court sending a decree for execution shall send a copy of the decree a certificate setting forth that satisfaction of the decree had not been obtained by execution within the jurisdiction of the Court and a copy of the order for the execution of the decree but there is authority to the effect that an omission to send a copy of the decree or an omission to transmit to the Court executing the decree the certificate referred to in Clause (b) does not prevent the decree-holder from applying for execution to the Court to which the decree has been transmitted. Such omission does not amount to a material irregularity within the meaning of Order 21, Rule 90 and as such cannot be made a ground for setting aside a sale in execution. Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953 SC 65: 1953 SCJ 130: 1953 SCR 377

Section 146.—Right of legal heirs.— Right to appeal.—The appeal is covered by the provision and right to file an appeal includes the right to continue to pursue an appeal.— Legal heir of a deceased party has a right to continue an appeal. Section 146 was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficient provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. An appeal is a proceeding for the purpose of this section, and that further the expression claiming under is wide enough to include cases of devolution and assignment mentioned in Order 22, Rule 10. Whoever is entitled to be but has not been brought on record under Order 22, Rule 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal.The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims. Smt. Saila Bala Dassi v. Sm. Nirmala Sundari Dassi and another, AIR 1958 SC 394: 1958 MPLJ 473: 1958 SCJ 743: 1958 SCR 1287

Order 21, Rule 17.—Execution of decree.—Maintenance.—Charge created over several properties.— Manner of execution. An executory charge-decree for maintenance becomes executable again and again as future sums become due. The executability of the decree keeps the charge alive on the remaining properties originally charged till the future amounts cease. In other words the charge subsists as long as the decree subsists. By the execution the charge is not transferred in its entirety to the properties purchased by the charge-holder. Nor is the charge divided between those properties and those, which still remain with the judgment debtor. The whole of the charge continues over all the properties jointly and severally. Nor is any priority established between the properties purchased by the charge-holder and those that remain. It is not permissible to seek an analogy from the cease of a mortgage. A charge is different from a mortgage. A mortgage is a transfer of an interest in property while a charge is merely a right to receive payment out of some specified property. The former is described a jus in rem and the latter as only a jus ad rem. In the case of a simple mortgage, there is a personal liability express or implied but in the case of charge there is no such personal liability and the decree, if it seeks to charge the judgment-debtor personally, has to do so in addition to the charge. This being the distinction it appears to us that the appellant's contention that the consequences of a mortgagee acquiring a share of the mortgagor in a portion of the mortgaged property obtain in the case of a charge is ill- founded. The charge can be enforced against all the properties or severally. Janapareddy Latchan Naidu v. Janapareddy Sanyasamma, AIR 1963 SC 1556: 1964 Andh WR (SC) 19: 1964(1) Mad LJ (SC) 19: 1964(1) SCR 920

Order 21, Rule 52.—Attachment of debt.—Allocation in State budget in favour of co-operative society ripening into a debt when an order of its payment is made.—Attachment of such allocation is valid under the provision. Attachment of debts is a process by means of which a judgment-creditor is enabled to reach money due to the judgment-debtor which is in the hands of a third person. These are garnishee proceedings. To be capable of attach- ment, there must be in existence at the date when the attachment becomes operative something which the law recognises as a debt. So long as there is a debt in existence, it is not necessary that it should be imme-diately payable. Where any existing debt is payable by future instalments, the garnishee order may be made to become operative as and when each instalment becomes due. The debt must be one which the judgment-debtor could himself enforce for his own benefit. A debt is a sum of money which is now payable or will become payable in the future by reason of present obligation. In the present case, the letter dated 12 June, 1959 proves that there is an obligation to pay the specified sum of Rs. 4,50,000/- to the Co-operative Society. The budget provision fastened on to the claim of the Co-operative Society against the State and it ripened into a debt payable to the Cooperative Society. Therefore, in the circumstances, the attachment levied by the City Civil Court was perfected by bringing money to the Court. The Hyderabad Co-operative Commercial Corporation Ltd. v. Syed Mohiuddin Khadir (dead) by L.Rs., AIR 1975 SC 2254: 1975(2) SCC 6624: 1976(1) SCR 159

Order 21, Rule 52.—Non-compliance .—Effect of.—Attachment without notice to the court or public officer in whose custody the property was entrusted.—Sale without such notice is not void ab initio. Kanhaiyalal v. Dr. D.R. Banaji and others, AIR 1958 SC 725: 1958 MPLJ 477: 1958 Nag LJ 404: 1958 SCJ 891: 1959 SCR 333

Order 21, Rule 50.—Application of.—Scope of.—Denial of decree against the partners while granting decree against the firm.—Provision has no application due to express exclusion by the Court.—Decree cannot be executed against the personal property of the partners. Topanmal Chhotamal v. M/s Kundomal Gangaram and others, AIR 1960 SC 388

Order 21, Rule 50.—Execution of decree.—Partnership Firm.— Execution of Decree is permissible not only against the property of the firm but also a person who have been served with individual notice under Order 30, Rules 6 and 7 of the Code.A decree against a firm can be executed (i) against the property of the partnership, (ii) against any person who has appeared in the suit individually in his own name and has been served with a notice under Rule 6 or 7 of Order XXX of C.P.C., (iii) against a person who has admitted on the pleadings that he is or has been adjudged a partner, or (iv) against any person who has been served with notice individually as a partner but has failed to appear. The decree against the firm can be executed against the personal property of such persons. Topanmal Chhotamal v. M/s Kundomal Gangaram and others, AIR 1960 SC 388

Order 21, Rule 50.—Execution of decree .—Decree against the firm.— Decree holder may execute decree against any person who has been served with the summons as a partner irrespective of fact whether such person appears in suit or failed to appear. Gajendra Narain Singh v. Johrimal Prahlad Rai, AIR 1964 SC 581: 1964(1) Andh WR (SC) 1: 1964 BLJR 396: 1964(1) MadLJ (SC) 1: 1963 Supp (2) SCR 30

Order 21, Rule 4.—Auction sale.— Satisfaction of decree.—It is obligatory on the court to decide whether it was necessary to sell entire attached property to satisfy the decree. In all execution proceedings, the Court has to first decide whether it is necessary to bring the entire attached property to sale or such portion thereof as may seen necessary to satisfy the decree. If the property is large and the decree to be satisfied is small, the Court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the claim of the decree-holder. It is immaterial whether the property is one or several. Even if the property is one, if a separate portion could be sold without violating any provision of law only such portion of the property should be sold. This, in our opinion, is not just discretion, but an obligation imposed on the Court. Care must be taken to put only such portion of the property to sale the consideration of which is sufficient to meet the claim in the execution petition. The sale held without examining this aspect and not in conformity with this requirement would be illegal and without jurisdiction. Ambati Narasayya v. M. Subba Rao and another, AIR 1990 SC 119: 1989 Supp. (2) SCC 693: 1989 Supp. (1) SCR 451: 1989(2) Scale 806: 1989(4) JT 50: 1989 Har. Rent. R 687

Section 145.—Surety for performance of decree.— Compromise between the decree holder and the judgment debtor without consent of surety.—The guarantor or surety, stood discharged. Full satisfaction recorded in that behalf relieves the guarantor or surety from the obligation with the decree-holder and the decree-holder cannot seek any further remedy against the surety. The liability of the guarantor or surety is co-extensive with the judgment-debtor. The compromise entered by the decree-holder binds himself by his conduct and releases the guarantor or surety from the liability undertaken in the guarantee or surety bond for due performance of the decree. In case the compromise was with the consent of the guarantor or surety compromise with the principal judgment-debtor is for other liability other than the extent of the liability undertaken by the guarantor or surety, in that event the guarantor or surety is not relieved from his liability for due performance of the decree. Amar Chand v. Bhano and another, AIR 1995 SC 871: 1995 Supp (1) SCC 550: 1994(5) Scale 287: 1995(2) Pun LR (SC) 493

Section 145.—Applicability.—Under-taking given before Court.—Enforce-ment of.—Provisions of Section 145 ensure to benefit court as well as custodian to proceed against defaulter judgment debtor failing to pay decretal amount within stipulated period.

Shown of all these unnecessary controversies now raised, we are also of the view that in a case where an item of property is referred to in an undertaking given to the Court as one which can be proceeded against in the event of the judgment debtor failing to pay the decretal amount within the stipulated time, the immovable property does not get ipso facto affected or suffer in any one of the manner envisaged under Section 17(1) of the Registration Act so as to require compulsory registration. That apart, the provisions contained in Section 145 C.P.C. also would ensure to the benefit of the Court as well as the custodian to proceed against the appellant in enforcement of the undertaking given to the Court.# Western Press Pvt. Ltd. Mumbai vs. The Custodian and others, AIR 2001 SC 450

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P.V.Kranthi Kiran, Hyd -9542350436

Saturday 1 February 2014

E.Ps - Execution steps. Before following you are requested to cross check with the relevant rules in CPC and CRP

Checking of execution petitions: -

Execution petition for arrest of Judgment debtor

Examples: -

Order 21 Rule 66 and 64 C.P.C

Decree of execution of a document or endorsement of negotiable

Prayer

Execution Application Application to set a side the sale under or.21 rule 80 C.P.C

Petition Under 0.21 Rule 106 C.P.C ( a) Entire sale warrant amount for payment to the D.Hr.

6 comments:

S 5 of limitation Act is not applicable to filing of execution application

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